G.R. No.
L-18463 October 4, 1922
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf
of the latter.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The important question is here squarely
presented of whether article 256 of the Spanish
Penal Code, punishing "Any person who, by . . .
writing, shall defame, abuse, or insult any
Minister of the Crown or other person in
authority . . .," is still in force.
About August 20, 1920, the Secretary of the
Philippine Senate, Fernando M. Guerrero,
discovered that certain documents which
constituted the records of testimony given by
witnesses in the investigation of oil companies,
had disappeared from his office. Shortly
thereafter, the Philippine Senate, having been
called into special session by the Governor-
General, the Secretary for the Senate informed
that body of the loss of the documents and of the
steps taken by him to discover the guilty party.
The day following the convening of the Senate,
September 7, 1920, the newspaper La Nacion,
edited by Mr. Gregorio Perfecto, published an
article reading as follows:
Half a month has elapsed since the
discovery, for the first time, of the
scandalous robbery of records which
were kept and preserved in the iron safe
of the Senate, yet up to this time there is
not the slightest indication that the
author or authors of the crime will ever
be discovered.
To find them, it would not, perhaps, be
necessary to go out of the Sente itself,
and the persons in charge of the
investigation of the case would not have
to display great skill in order to succeed
in their undertaking, unless they should
encounter the insuperable obstacle of
offical concealment.
In that case, every investigation to be
made would be but a mere comedy and
nothing more.
After all, the perpetration of the robbery,
especially under the circumstances that
have surrounded it, does not surprise us
at all.
The execution of the crime was but the
natural effect of the environment of the
place in which it was committed.
How many of the present Senators can
say without remorse in their conscience
and with serenity of mind, that they do
not owe their victory to electoral
robbery? How may?
The author or authors of the robbery of
the records from the said iron safe of the
Senate have, perhaps, but followed the
example of certain Senators who
secured their election through fraud and
robbery.
The Philippine Senate, in its session of
September 9, 1920, adopted a resolution
authorizing its committee on elections and
privileges to report as to the action which should
be taken with reference to the article published
in La Nacion. On September 15, 1920, the
Senate adopted a resolution authorizing the
President of the Senate to indorse to the
Attorney-General, for his study and
corresponding action, all the papers referring to
the case of the newspaper La Nacion and its
editor, Mr. Gregorio Perfecto. As a result, an
information was filed in the municipal court of the
City of Manila by an assistant city fiscal, in which
the editorial in question was set out and in which
it was alleged that the same constituted a
violation of article 256 of the Penal Code. The
defendant Gregorio Perfecto was found guilty in
the municipal court and again in the Court of
First Instance of Manila.
During the course of the trial in the Court of First
Instance, after the prosecution had rested, the
defense moved for the dismissal of the case. On
the subject of whether or not article 256 of the
Penal Code, under which the information was
presented, is in force, the trial judge, the
Honorable George R. Harvey, said:
This antiquated provision was doubtless
incorporated into the Penal Code of
Spain for the protection of the Ministers
of the Crown and other representatives
of the King against free speech and
action by Spanish subjects. A severe
punishment was prescribed because it
was doubtless considered a much more
serious offense to insult the King's
1 | PART 1 C O N S T I 1 FULLTEXT
 representative than to insult an ordinary
individual. This provision, with almost all
the other articles of that Code, was
extended to the Philippine Islands when
under the dominion of Spain because
the King's subject in the Philippines
might defame, abuse or insult the
Ministers of the Crown or other
representatives of His Majesty. We now
have no Ministers of the Crown or other
persons in authority in the Philippines
representing the King of Spain, and said
provision, with other articles of the Penal
Code, had apparently passed into
"innocuous desuetude," but the
Supreme Corut of the Philippine Islands
has, by a majority decision, held that
said article 256 is the law of the land to-
day. . . .
The Helbig case is a precedent which,
by the rule of stare decisis, is binding
upon this court until otherwise
determined by proper authority.
In the decision rendered by the same judge, he
concluded with the following language:
In the United States such publications
are usually not punishable as criminal
offense, and little importance is attached
to them, because they are generally the
result of political controversy and are
usually regarded as more or less
colored or exaggerated. Attacks of this
character upon a legislative body are not
punishable, under the Libel Law.
Although such publications are
reprehensible, yet this court feels some
aversion to the application of the
provision of law under which this case
was filed. Our Penal Code has come to
us from the Spanish regime. Article 256
of that Code prescribes punishment for
persons who use insulting language
about Ministers of the Crown or other
"authority." The King of Spain doubtless
left the need of such protection to his
ministers and others in authority in the
Philippines as well as in Spain. Hence,
the article referred to was made
applicable here. Notwithstanding the
change of sovereignty, our Supreme
Court, in a majority decision, has held
that this provision is still in force, and
that one who made an insulting remark
about the President of the United States
was punishable under it.
(U.S. vs. Helbig, supra.) If it applicable
in that case, it would appear to be
applicable in this case. Hence, said
article 256 must be enforced, without
fear or favor, until it shall be repealed or
superseded by other legislation, or until
the Supreme Court shall otherwise
determine.
In view of the foregoing considerations,
the court finds the defendant guilty as
charged in the information and under
article 256 of their Penal Code
sentences him to suffer two months and
one day of arresto mayor and the
accessory penalties prescribed by law,
and to pay the costs of both instances.
The fifteen errors assigned by the defendant and
appellant, reenforced by an extensive brief, and
eloquent oral argument made in his own behalf
and by his learned counsel, all reduce
themselves to the pertinent and decisive
question which was announced in the beginning
of this decision.
It will be noted in the first place that the trial
judge considered himself bound to follow the
rule announced in the case of United
States vs. Helbig (R. G. No. 14705, 1 not
published). In that case, the accused was
charged with having said, "To hell with the
President and his proclamations, or words to
that effect," in violation of article 256 of the
Penal Code. He was found guilty in a judgment
rendered by the Court of First Instance of Manila
and again on appeal to the Supreme Court, with
the writer of the instant decision dissenting on
two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-
examination, and (2) that article 256 of the
Spanish Penal Code is no longer in force.
Subsequently, on a motion of reconsideration,
the court, being of the opinion that the Court of
First Instance had committed a prejudicial error
in depriving the accused of his right to cross-
examine a principal witness, set aside the
judgment affirming the judgment appealed from
and ordered the return of the record to the court
of origin for the celebration of a new trial.
Whether such a trial was actually had, is not
known, but at least, the record in the Helbig case
has never again been elevated to this court.
There may perchance exist some doubt as to
the authority of the decision in the Helbig case,
in view of the circumstances above described.
This much, however, is certain: The facts of the
Helbig case and the case before us, which we
may term the Perfecto case, are different, for in
the first case there was an oral defamation,
while in the second there is a written defamation.
Not only this, but a new point which, under the
facts, could not have been considered in the
2 | PART 1 C O N S T I 1 FULLTEXT
Helbig case, is, in the Perfecto case, urged upon
the court. And, finally, as is apparent to all, the
appellate court is not restrained, as was the trial
court, by strict adherence to a former decision.
We much prefer to resolve the question before
us unhindered by references to the Helbig
decision.
This is one of those cases on which a variety of
opinions all leading to the same result can be
had. A majority of the court are of the opinion
that the Philippine Libel Law, Act No. 277, has
had the effect of repealing so much of article 256
of the Penal Code as relates to written
defamation, abuse, or insult, and that under the
information and the facts, the defendant is
neither guilty of a violation of article 256 of the
Penal Code, nor of the Libel Law. The view of
the Chief Justice is that the accused should be
acquitted for the reason that the facts alleged in
the information do not constitute a violation of
article 156 of the Penal Code. Three members of
the court believe that article 256 was abrogated
completely by the change from Spanish to
American sovereignty over the Philippines and is
inconsistent with democratic principles of
government.
Without prejudice to the right of any member of
the court to explain his position, we will discuss
the two main points just mentioned.
1. Effect of the Philippine Libel Law, Act
No. 277, on article 256 of the Spanish
Penal Code. — The Libel Law, Act No.
277, was enacted by the Philippine
Commission shortly after organization of
this legislative body. Section 1 defines
libel as a "malicious defamation,
expressed either in writing, printing, or
by signs or pictures, or the like, or public
theatrical exhibitions, tending to blacken
the memory of one who is dead or to
impeach the honesty, virtue, or
reputation, or publish the alleged or
natural deffects of one who is alive, and
thereby expose him to public hatred,
contempt or ridicule." Section 13
provides that "All laws and parts of laws
now in force, so far as the same may be
in conflict herewith, are hereby repealed.
. . ."
That parts of laws in force in 1901 when the
Libel Law took effect, were in conflict therewith,
and that the Libel Law abrogated certain portion
of the Spanish Penal Code, cannot be gainsaid.
Title X of Book II of the Penal Code, covering the
subjects of calumny and insults, must have been
particularly affected by the Libel Law. Indeed, in
the early case of Pardo de Tavera vs. Garcia
Valdez ([1902], 1. Phil., 468), the Supreme Court
spoke of the Libel Law as "reforming the
preexisting Spanish law on the subject
of calumnia and injuria." Recently, specific
attention was given to the effect of the Libel Law
on the provisions of the Penal Code, dealing
with calumny and insults, and it was found that
those provisions of the Penal Code on the
subject of calumny and insults in which the
elements of writing an publicity entered, were
abrogated by the Libel Law. (People vs. Castro
[1922], p. 842, ante.)
The Libel Law must have had the same result on
other provisions of the Penal Code, as for
instance article 256.
The facts here are that the editor of a newspaper
published an article, naturally in writing, which
may have had the tendency to impeach the
honesty, virtue, or reputation of members of the
Philippine Senate, thereby possibly exposing
them to public hatred, contempt, or ridicule,
which is exactly libel, as defined by the Libel
Law. Sir J. F. Stephen is authority for the
statement that a libel is indictable when
defaming a "body of persons definite and small
enough for individual members to be recognized
as such, in or by means of anything capable of
being a libel." (Digest of Criminal Law, art. 267.)
But in the United States, while it may be proper
to prosecute criminally the author of a libel
charging a legislator with corruption, criticisms,
no matter how severe, on a legislature, are
within the range of the liberty of the press,
unless the intention and effect be seditious. (3
Wharton's Criminal Law, p. 2131.) With these
facts and legal principles in mind, recall that
article 256 begins: Any person who, by . .
. writing, shall defame, abuse, or insult any
Minister of the Crown or other person in
authority," etc.
The Libel Law is a complete and comprehensive
law on the subject of libel. The well-known rule
of statutory construction is, that where the later
statute clearly covers the old subject-matter of
antecedent acts, and it plainly appears to have
been the purpose of the legislature to give
expression in it to the whole law on the subject,
previous laws are held to be repealed by
necessary implication. (1 Lewis' Sutherland
Statutory Construction, p. 465.) For identical
reasons, it is evident that Act No. 277 had the
effect so much of this article as punishes
defamation, abuse, or insults by writing.
Act No. 292 of the Philippine Commission, the
Treason and Sedition Law, may also have
affected article 256, but as to this point, it is not
necessary to make a pronouncement.
3 | PART 1 C O N S T I 1 FULLTEXT
 2. Effect of the change from Spanish to
Amercian sevoreignty over the
Philippine son article 256 of the Spanish
Penal Code. — Appellant's main
proposition in the lower court and again
energetically pressed in the appellate
court was that article 256 of the Spanish
Penal Code is not now in force because
abrogated by the change from Spanish
to American sovereignty over the
Philippines and because inconsistent
with democratic principles of
government. This view was indirectly
favored by the trial judge, and, as before
stated, is the opinion of three members
of this court.
Article 256 is found in Chapter V of title III of
Book II of the Spanish Penal Code. Title I of
Book II punishes the crimes of treason, crimes
that endanger the peace or independence of the
state, crimes against international law, and the
crime of piracy. Title II of the same book
punishes the crimes of lese majeste, crimes
against the Cortes and its members and against
the council of ministers, crimes against the form
of government, and crimes committed on the
occasion of the exercise of rights guaranteed by
the fundamental laws of the state, including
crime against religion and worship. Title III of the
same Book, in which article 256 is found,
punishes the crimes of rebellion, sedition,
assaults upon persons in authority, and their
agents, and contempts, insults, injurias, and
threats against persons in authority, and
insults, injurias, and threats against their agents
and other public officers, the last being the title
to Chapter V. The first two articles in Chapter V
define and punish the offense of contempt
committed by any one who shall be word or
deed defame, abuse, insult, or threathen a
minister of the crown, or any person in authority.
The with an article condemning challenges to
fight duels intervening, comes article 256, now
being weighed in the balance. It reads as
follows: "Any person who, by word, deed, or
writing, shall defame, abuse, or insult any
Minister of the Crown or other person in
authority, while engaged in the performance of
official duties, or by reason of such performance,
provided that the offensive minister or person, or
the offensive writing be not addressed to him,
shall suffer the penalty of arresto mayor," — that
is, the defamation, abuse, or insult of
any Minister of the Crown of the Monarchy of
Spain (for there could not be a Minister of the
Crown in the United States of America), or other
person in authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions
of the Spanish Penal Code having to do with
such subjects as treason, lese majeste, religion
and worship, rebellion, sedition, and contempts
of ministers of the crown, are not longer in force.
Our present task, therefore, is a determination of
whether article 256 has met the same fate, or,
more specifically stated, whether it is in the
nature of a municipal law or political law, and is
consistent with the Constitution and laws of the
United States and the characteristics and
institutions of the American Government.
It is a general principle of the public law that on
acquisition of territory the previous political
relations of the ceded region are totally
abrogated. "Political" is here used to denominate
the laws regulating the relations sustained by the
inhabitants to the sovereign. (American
Insurance Co. vs. Canter [1828], 1 Pet., 511;
Chicago, Rock Island and Pacific Railway
Co. vs. McGlinn [1885], 114 U.S., 542;
Roa vs. Collector of Customs [1912], 23 Phil.,
315.) Mr. Justice Field of the United States
Supreme Court stated the obvious when in the
course of his opinion in the case of Chicago,
Rock Island and Pacific Railway
Co. vs. McGlinn, supra, he said: "As a matter of
course, all laws, ordinances and regulations in
conflict with the political character, institutions
and Constitution of the new government are at
once displaced. Thus, upon a cession of political
jurisdiction and legislative power — and the
latter is involved in the former — to the United
States, the laws of the country in support of an
established religion or abridging the freedom of
the press, or authorizing cruel and unusual
punishments, and he like, would at once cease
to be of obligatory force without any declaration
to that effect." To quote again from the United
States Supreme Court: "It cannot be admitted
that the King of Spain could, by treaty or
otherwise, impart to the United States any of his
royal prerogatives; and much less can it be
admitted that they have capacity to receive or
power to exercise them. Every nation acquiring
territory, by treaty or otherwise, must hold it
subject to the Constitution and laws of its own
government, and not according to those of the
government ceding it." (Pollard vs. Hagan
[1845], 3 Hos., 210.)
On American occupation of the Philippines, by
instructions of the President to the Military
Commander dated May 28, 1898, and by
proclamation of the latter, the municipal laws of
the conquered territory affecting private rights of
person and property and providing for the
punishment of crime were nominally continued in
force in so far as they were compatible with the
new order of things. But President McKinley, in
his instructions to General Merritt, was careful to
say: "The first effect of the military occupation of
4 | PART 1 C O N S T I 1 FULLTEXT
the enemy's territory is the severance of the
former political relation of the inhabitants and the
establishment of a new political power." From
that day to this, the ordinarily it has been taken
for granted that the provisions under
consideration were still effective. To paraphrase
the language of the United States Supreme
Court in Weems vs. United States ([1910], 217
U. S., 349), there was not and could not be,
except as precise questions were presented, a
careful consideration of the codal provisions and
a determination of the extent to which they
accorded with or were repugnant to the "'great
principles of liberty and law' which had been
'made the basis of our governmental system.' "
But when the question has been squarely raised,
the appellate court has been forced on occasion
to hold certain portions of the Spanish codes
repugnant t democratic institutions and
American constitutional principles.
(U.S. vs. Sweet [1901], 1 Phil., 18;
U.S. vs. Balcorta [1913], 25 Phil., 273;
U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)
The nature of the government which has been
set up in the Philippines under American
sovereignty was outlined by President McKinley
in that Magna Charta of Philippine liberty, his
instructions to the Commission, of April 7, 1900.
In part, the President said:
In all the forms of government and
administrative provisions which they are
authorized to prescribe, the Commission
should bear in mind that he government
which they are establishing is designed
not for our satisfaction or for the
expression of our theoretical views, but
for the happiness, peace, and prosperity
of the people of the Philippine Islands,
and the measures adopted should be
made to conform to their customs, their
habits, and even their prejudices, to the
fullest extent consistent with the
accomplishment of the indispensable
requisites of just and effective
government. At the same time the
Commission should bear in mind,
and the people of the Islands should be
made plainly to understand, that there
are certain great principles of
government which have been made the
basis of our governmental system,
which we deem essential to the rule of
law and the maintenance of individual
freedom, and of which they have,
unfortunately, been denied the
experience possessed by us; that there
are also certain practical rules of
government which we have found to be
essential to the preservation of these
great principles of liberty and law, and
that these principles and these rules of
government must be established and
maintained in their islands for the sake
of their liberty and happiness, however
much they may conflict with the customs
or laws of procedure with which they are
familiar. It is evident that the most
enligthened thought of the Philippine
Islands fully appreciates the importance
of these principles and rules, and they
will inevitably within a short time
command universal assent.
The courts have naturally taken the same view.
Mr. Justice Elliott, speaking for our Supreme
Court, in the case of United States vs. Bull
([1910], 15 Phil., 7), said: "The President and
Congress framed the government on the model
with which American are familiar, and which has
proven best adapted for the advancement of the
public interests and the protection of individual
rights and privileges."
Therefore, it has come with somewhat of a
shock to hear the statement made that the
happiness, peace, and prosperity of the people
of the Philippine Islands and their customs,
habits, and prejudices, to follow the language of
President McKinley, demand obeisance to
authority, and royal protection for that authority.
According to our view, article 256 of the Spanish
Penal Code was enacted by the Government of
Spain to protect Spanish officials who were the
representatives of the King. With the change of
sovereignty, a new government, and a new
theory of government, as set up in the
Philippines. It was in no sense a continuation of
the old, although merely for convenience certain
of the existing institutions and laws were
continued. The demands which the new
government made, and makes, on the individual
citizen are likewise different. No longer is there a
Minister of the Crown or a person in authority of
such exalted position that the citizen must speak
of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign,
a ruler and a freeman, and has equal rights with
every other man. We have no rank or station,
except that of respectability and intelligence as
opposed to indecency and ignorance, and the
door to this rank stands open to every man to
freely enter and abide therein, if he is qualified,
and whether he is qualified or not depends upon
the life and character and attainments and
conduct of each person for himself. Every man
may lawfully do what he will, so long as it is
not malum in se or malum prohibitum or does
not infringe upon the qually sacred rights of
5 | PART 1 C O N S T I 1 FULLTEXT
others." (State vs. Shepherd [1903], 177 Mo.,
205; 99 A. S. R., 624.)
It is true that in England, from which so many of
the laws and institutions of the United States are
derived, there were once statutes of scandalum
magnatum, under which words which would not
be actionable if spoken of an ordinary subject
were made actionable if spoken of a peer of the
realm or of any of the great officers of the
Crown, without proof of any special damage.
The Crown of England, unfortunately, took a
view less tolerant that that of other sovereigns,
as for instance, the Emperors Augustus, Caesar,
and Tiberius. These English statutes have,
however, long since, become obsolete, while in
the United States, the offense of scandalum
magnatum is not known. In the early days of the
American Republic, a sedition law was enacted,
making it an offense to libel the Government, the
Congress, or the President of the United States,
but the law met with so much popular
disapproval, that it was soon repealed. "In this
country no distinction as to persons is
recognized, and in practice a person holding a
high office is regarded as a target at whom any
person may let fly his poisonous words. High
official position, instead of affording immunity
from slanderous and libelous charges, seems
rather to be regarded as making his character
free plunder for any one who desires to create a
senation by attacking it." (Newell, Slander and
Libel, 3d ed., p. 245; Sillars vs. Collier [1890],
151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the
genius and fundamental principles of the
American character and system of government.
The gulf which separates this article from the
spirit which inspires all penal legislation of
American origin, is as wide as that which
separates a monarchy from a democratic
Republic like that of the United States. This
article was crowded out by implication as soon
as the United States established its authority in
the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded
in a distorted monarchical conception of the
nature of political authority, as opposed to the
American conception of the protection of the
interests of the public, have been obliterated by
the present system of government in the
Islands.1awph!l.net
From an entirely different point of view, it must
be noted that this article punishes contempts
against executive officials, although its terms are
broad enough to cover the entire official class.
Punishment for contempt of non-judicial officers
has no place in a government based upon
American principles. Our official class is not, as
in monarchies, an agent of some authority
greater than the people but it is an agent and
servant of the people themselves. These officials
are only entitled to respect and obedience when
they are acting within the scope of their authority
and jurisdiction. The American system of
government is calculated to enforce respect and
obedience where such respect and obedience is
due, but never does it place around the
individual who happens to occupy an official
position by mandate of the people any official
halo, which calls for drastic punishment for
contemptuous remarks.
The crime of lese majeste disappeared in the
Philippines with the ratification of the Treaty of
Paris. Ministers of the Crown have no place
under the American flag.
To summarize, the result is, that all the members
of the court are of the opinion, although for
different reasons, that the judgment should be
reversed and the defendant and appellant
acquitted, with costs de officio. So ordered.
Ostrand and Johns, JJ., concur.
Separate Opinions
ARAULLO, C.J., concurring:
I concur with the dispositive part of the foregoing
decision, that is, with the acquittal of the
accused, for the sole reason that the facts
alleged in the information do not constitute a
violation of article 256 of the Penal Code; for
although that article is in force with respect to
calumny, injuria, or insult, by deed or word,
against an authority in the performance of his
duties or by reason thereof, outside of his
presence, it is repealed by the Libel Law in so
far as it refers to calumny, injuria, or insult
committed against an authority by writing or
printing, as was that inserted in the said
information.
ROMUALDEZ, J., concurring:
I concur with the result. I believe that the
responsibility of the accused has not been
shown either under article 256 of the Penal
Code or under the Libel Law.
I am of the opinion that article 256 of the Penal
Code is still in force, except as it refers to
"Ministers of the Crown," whom we do not have
in our Government, and to calumny, injuria, or
insult, by writing or printing, committed against
an authority in the performance of his duties or
6 | PART 1 C O N S T I 1 FULLTEXT
by reason thereof, which portion was repealed
by the Libel Law.

Johnson, Street, Avanceña and Villamor, JJ.,

concur.

7 | PART 1 C O N S T I 1 FULLTEXT
A.M. No. 133-J May 31, 1982 deceased during his second
marriage; d) if there was any
BERNARDITA R. MACARIOLA, complainant, partition to be made, those
vs. conjugal properties should first
HONORABLE ELIAS B. ASUNCION, Judge of be partitioned into two parts,
the Court of First Instance of and one part is to be
Leyte, respondent. adjudicated solely to defendant
it being the share of the latter's
deceased mother, Felisa
Espiras, and the other half
which is the share of the
MAKASIAR, J: deceased Francisco Reyes was
to be divided equally among his
In a verified complaint dated August 6, 1968 children by his two marriages.
Bernardita R. Macariola charged respondent
Judge Elias B. Asuncion of the Court of First On June 8, 1963, a decision
Instance of Leyte, now Associate Justice of the was rendered by respondent
Court of Appeals, with "acts unbecoming a Judge Asuncion in Civil Case
judge." 3010, the dispositive portion of
which reads:
The factual setting of the case is stated in the
report dated May 27, 1971 of then Associate IN VIEW OF
Justice Cecilia Muñoz Palma of the Court of THE
Appeals now retired Associate Justice of the FOREGOING
Supreme Court, to whom this case was referred CONSIDERATI
on October 28, 1968 for investigation, thus: ONS, the Court,
upon a
Civil Case No. 3010 of the Court preponderance
of First Instance of Leyte was a of evidence,
complaint for partition filed by finds and so
Sinforosa R. Bales, Luz R. holds, and
Bakunawa, Anacorita Reyes, hereby renders
Ruperto Reyes, Adela Reyes, judgment (1)
and Priscilla Reyes, plaintiffs, Declaring the
against Bernardita R. Macariola, plaintiffs Luz R.
defendant, concerning the Bakunawa,
properties left by the deceased Anacorita
Francisco Reyes, the common Reyes, Ruperto
father of the plaintiff and Reyes, Adela
defendant. Reyes and
Priscilla Reyes
In her defenses to the complaint as the only
for partition, Mrs. Macariola children
alleged among other things that; legitimated by
a) plaintiff Sinforosa R. Bales the subsequent
was not a daughter of the marriage of
deceased Francisco Reyes; b) Francisco
the only legal heirs of the Reyes Diaz to
deceased were defendant Irene Ondez;
Macariola, she being the only (2) Declaring
offspring of the first marriage of the plaintiff
Francisco Reyes with Felisa Sinforosa R.
Espiras, and the remaining Bales to have
plaintiffs who were the children been an
of the deceased by his second illegitimate child
marriage with Irene Ondez; c) of Francisco
the properties left by the Reyes Diaz; (3)
deceased were all the conjugal Declaring Lots
properties of the latter and his Nos. 4474,
first wife, Felisa Espiras, and no 4475, 4892,
properties were acquired by the 5265, 4803,
8 | PART 1 C O N S T I 1 FULLTEXT
4581, 4506 and of one-half (1/2)
1/4 of Lot 1145 of Lot No. 2304
as belonging to and one-half
the conjugal (1/2) of one-
partnership of fourth (1/4) of
the spouses Lot No. 3416;
Francisco the remaining
Reyes Diaz and one-half (1/2) of
Felisa Espiras; Lot 2304 and
(4) Declaring the remaining
Lot No. 2304 one-half (1/2) of
and 1/4 of Lot one-fourth (1/4)
No. 3416 as of Lot No. 3416
belonging to the as belonging to
spouses the estate of
Francisco Francisco
Reyes Diaz and Reyes Diaz; (8)
Irene Ondez in Directing the
common division or
partnership; (5) partition of the
Declaring that estate of
1/2 of Lot No. Francisco
1184 as Reyes Diaz in
belonging such a manner
exclusively to as to give or
the deceased grant to Irene
Francisco Ondez, as
Reyes Diaz; (6) surviving widow
Declaring the of Francisco
defendant Reyes Diaz, a
Bernardita R. hereditary share
Macariola, of. one-twelfth
being the only (1/12) of the
legal and forced whole estate of
heir of her Francisco
mother Felisa Reyes Diaz
Espiras, as the (Art. 996 in
exclusive owner relation to Art.
of one-half of 892, par 2, New
each of Lots Civil Code), and
Nos. 4474, the remaining
4475, 4892, portion of the
5265, 4803, estate to be
4581, 4506; and divided among
the remaining the plaintiffs
one-half (1/2) of Sinforosa R.
each of said Bales, Luz R.
Lots Nos. 4474, Bakunawa,
4475, 4892, Anacorita
5265, 4803, Reyes, Ruperto
4581, 4506 and Reyes, Adela
one-half (1/2) of Reyes, Priscilla
one-fourth (1/4) Reyes and
of Lot No. 1154 defendant
as belonging to Bernardita R.
the estate of Macariola, in
Francisco such a way that
Reyes Diaz; (7) the extent of the
Declaring Irene total share of
Ondez to be the plaintiff
exclusive owner Sinforosa R.

9 | PART 1 C O N S T I 1 FULLTEXT
Bales in the defendant
hereditary Bernardita R.
estate shall not Macariola to
exceed the pay the costs of
equivalent of this suit, in the
two-fifth (2/5) of proportion of
the total share one-third (1/3)
of any or each by the first
of the other named and two-
plaintiffs and thirds (2/3) by
the defendant the second
(Art. 983, New named; and (I
Civil Code), 1) Dismissing
each of the all other claims
latter to receive of the parties
equal shares [pp 27-29 of
from the Exh. C].
hereditary
estate, The decision in civil case 3010
(Ramirez vs. became final for lack of an
Bautista, 14 appeal, and on October 16,
Phil. 528; 1963, a project of partition was
Diancin vs. submitted to Judge Asuncion
Bishop of Jaro, which is marked Exh. A.
O.G. [3rd Ed.] Notwithstanding the fact that the
p. 33); (9) project of partition was not
Directing the signed by the parties
parties, within themselves but only by the
thirty days after respective counsel of plaintiffs
this judgment and defendant, Judge Asuncion
shall have approved it in his Order dated
become final to October 23, 1963, which for
submit to this convenience is quoted
court, for hereunder in full:
approval a
project of
The parties,
partition of the through their
hereditary respective
estate in the
counsels,
proportion
presented to
above
this Court for
indicated, and
approval the
in such manner following project
as the parties
of partition:
may, by
agreement,
deemed COMES NOW,
convenient and the plaintiffs
equitable to and the
them taking into defendant in the
consideration above-entitled
the location, case, to this
kind, quality, Honorable
nature and Court
value of the respectfully
properties submit the
involved; (10) following
Directing the Project of
plaintiff Partition:
Sinforosa R.
Bales and l. The whole of
Lots Nos. 1154,
10 | PART 1 C O N S T I 1 FULLTEXT
2304 and 4506 above shall be
shall belong awarded to Luz
exclusively to Reyes
Bernardita Bakunawa,
Reyes Anacorita
Macariola; Reyes, Ruperto
Reyes, Adela
2. A portion of Reyes and
Lot No. 3416 Priscilla Reyes
consisting of in equal shares,
2,373.49 square provided,
meters along however that
the eastern part the remaining
of the lot shall portion of Lot
be awarded No. 3416 shall
likewise to belong
Bernardita R. exclusively to
Macariola; Priscilla Reyes.

3. Lots Nos. WHEREFORE,

4803, 4892 and it is respectfully
5265 shall be prayed that the
awarded to Project of
Sinforosa Partition
Reyes Bales; indicated above
which is made
in accordance
4. A portion of
with the
Lot No. 3416
decision of the
consisting of
1,834.55 square Honorable
meters along Court be
approved.
the western part
of the lot shall
likewise be Tacloban City,
awarded to October 16,
Sinforosa 1963.
Reyes-Bales;
(SGD)
5. Lots Nos. BONIFACIO
4474 and 4475 RAMO Atty. for
shall be divided the Defendant
equally among Tacloban City
Luz Reyes
Bakunawa, (SGD) ZOTICO
Anacorita A. TOLETE
Reyes, Ruperto Atty. for the
Reyes, Adela Plaintiff
Reyes and Tacloban City
Priscilla Reyes
in equal shares; While the Court
thought it more
6. Lot No. 1184 desirable for all
and the the parties to
remaining have signed this
portion of Lot Project of
No. 3416 after Partition,
taking the nevertheless,
portions upon assurance
awarded under of both
item (2) and (4) counsels of the

11 | PART 1 C O N S T I 1 FULLTEXT
respective each one in
parties to this view of said
Court that the Project of
Project of Partition, and to
Partition, as perform such
above- quoted, other acts as
had been made are legal and
after a necessary to
conference and effectuate the
agreement of said Project of
the plaintiffs Partition.
and the
defendant SO ORDERED.
approving the
above Project of Given in
Partition, and
Tacloban City,
that both
this 23rd day of
lawyers had
October, 1963.
represented to
the Court that
they are given (SGD) ELIAS B.
full authority to ASUNCION
sign by Judge
themselves the
Project of EXH. B.
Partition, the
Court, The above Order of October 23,
therefore, 1963, was amended on
finding the November 11, 1963, only for the
above-quoted purpose of giving authority to
Project of the Register of Deeds of the
Partition to be in Province of Leyte to issue the
accordance with corresponding transfer
law, hereby certificates of title to the
approves the respective adjudicatees in
same. The conformity with the project of
parties, partition (see Exh. U).
therefore, are
directed to One of the properties mentioned
execute such in the project of partition was Lot
papers, 1184 or rather one-half thereof
documents or with an area of 15,162.5 sq.
instrument meters. This lot, which
sufficient in according to the decision was
form and the exclusive property of the
substance for deceased Francisco Reyes, was
the vesting of adjudicated in said project of
the rights, partition to the plaintiffs Luz,
interests and Anacorita Ruperto, Adela, and
participations Priscilla all surnamed Reyes in
which were equal shares, and when the
adjudicated to project of partition was
the respective approved by the trial court the
parties, as adjudicatees caused Lot 1184 to
outlined in the be subdivided into five lots
Project of denominated as Lot 1184-A to
Partition and 1184-E inclusive (Exh. V).
the delivery of
the respective
Lot 1184-D was conveyed to
properties
Enriqueta D. Anota, a
adjudicated to
stenographer in Judge
12 | PART 1 C O N S T I 1 FULLTEXT
 Asuncion's court (Exhs. F, F-1
and V-1), while Lot 1184-E
which had an area of
2,172.5556 sq. meters was sold
on July 31, 1964 to Dr. Arcadio
Galapon (Exh. 2) who was
issued transfer certificate of title
No. 2338 of the Register of
Deeds of the city of Tacloban
(Exh. 12).
On March 6, 1965, Dr. Arcadio
Galapon and his wife Sold a
portion of Lot 1184-E with an
area of around 1,306 sq. meters
to Judge Asuncion and his wife,
Victoria S. Asuncion (Exh. 11),
which particular portion was
declared by the latter for
taxation purposes (Exh. F).
On August 31, 1966, spouses
Asuncion and spouses Galapon
conveyed their respective
shares and interest in Lot 1184-
E to "The Traders
Manufacturing and Fishing
Industries Inc." (Exit 15 & 16). At
the time of said sale the
stockholders of the corporation
were Dominador Arigpa Tan,
Humilia Jalandoni Tan, Jaime
Arigpa Tan, Judge Asuncion,
and the latter's wife, Victoria S.
Asuncion, with Judge Asuncion
as the President and Mrs.
Asuncion as the secretary
(Exhs. E-4 to E-7). The Articles
of Incorporation of "The Traders
Manufacturing and Fishing
Industries, Inc." which we shall
henceforth refer to as
"TRADERS" were registered
with the Securities and
Exchange Commission only on
January 9, 1967 (Exh. E) [pp.
378-385, rec.].
Complainant Bernardita R. Macariola filed on
August 9, 1968 the instant complaint dated
August 6, 1968 alleging four causes of action, to
wit: [1] that respondent Judge Asuncion violated
Article 1491, paragraph 5, of the New Civil Code
in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties
involved in Civil Case No. 3010 decided by him;
[2] that he likewise violated Article 14,
paragraphs I and 5 of the Code of Commerce,
Section 3, paragraph H, of R.A. 3019, otherwise
known as the Anti-Graft and Corrupt Practices
Act, Section 12, Rule XVIII of the Civil Service
Rules, and Canon 25 of the Canons of Judicial
Ethics, by associating himself with the Traders
Manufacturing and Fishing Industries, Inc., as a
stockholder and a ranking officer while he was a
judge of the Court of First Instance of Leyte; [3]
that respondent was guilty of coddling an
impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain
Dominador Arigpa Tan who openly and publicly
advertised himself as a practising attorney when
in truth and in fact his name does not appear in
the Rolls of Attorneys and is not a member of
the Philippine Bar; and [4] that there was a
culpable defiance of the law and utter disregard
for ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September
24, 1968 his answer to which a reply was filed
on October 16, 1968 by herein complainant. In
Our resolution of October 28, 1968, We referred
this case to then Justice Cecilia Muñoz Palma of
the Court of Appeals, for investigation, report
and recommendation. After hearing, the said
Investigating Justice submitted her report dated
May 27, 1971 recommending that respondent
Judge should be reprimanded or warned in
connection with the first cause of action alleged
in the complaint, and for the second cause of
action, respondent should be warned in case of
a finding that he is prohibited under the law to
engage in business. On the third and fourth
causes of action, Justice Palma recommended
that respondent Judge be exonerated.
The records also reveal that on or about
November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before
the Court of First Instance of Leyte, entitled
"Bernardita R. Macariola, plaintiff, versus
Sinforosa R. Bales, et al., defendants," which
was docketed as Civil Case No. 4235, seeking
the annulment of the project of partition made
pursuant to the decision in Civil Case No. 3010
and the two orders issued by respondent Judge
approving the same, as well as the partition of
the estate and the subsequent conveyances with
damages. It appears, however, that some
defendants were dropped from the civil case.
For one, the case against Dr. Arcadio Galapon
was dismissed because he was no longer a real
party in interest when Civil Case No. 4234 was
filed, having already conveyed on March 6, 1965
a portion of lot 1184-E to respondent Judge and
on August 31, 1966 the remainder was sold to
the Traders Manufacturing and Fishing
Industries, Inc. Similarly, the case against
defendant Victoria Asuncion was dismissed on
the ground that she was no longer a real party in
interest at the time the aforesaid Civil Case No.
4234 was filed as the portion of Lot 1184
acquired by her and respondent Judge from Dr.
13 | PART 1 C O N S T I 1 FULLTEXT
Arcadio Galapon was already sold on August 31, for exemplary
1966 to the Traders Manufacturing and Fishing damages;
industries, Inc. Likewise, the cases against
defendants Serafin P. Ramento, Catalina Cabus, (c) the sum of
Ben Barraza Go, Jesus Perez, Traders FIFTY
Manufacturing and Fishing Industries, Inc., THOUSAND
Alfredo R. Celestial and Pilar P. Celestial, PESOS
Leopoldo Petilla and Remedios Petilla, Salvador [P50,000.00] for
Anota and Enriqueta Anota and Atty. Zotico A. nominal
Tolete were dismissed with the conformity of damages; and
complainant herein, plaintiff therein, and her
counsel.
(d) he sum of
TEN
On November 2, 1970, Judge Jose D. THOUSAND
Nepomuceno of the Court of First Instance of PESOS
Leyte, who was directed and authorized on June [PI0,000.00] for
2, 1969 by the then Secretary (now Minister) of Attorney's Fees.
Justice and now Minister of National Defense
Juan Ponce Enrile to hear and decide Civil Case B. IN THE
No. 4234, rendered a decision, the dispositive CASE
portion of which reads as follows:
AGAINST THE
DEFENDANT
A. IN THE CASE AGAINST MARIQUITA
JUDGE ELIAS B. ASUNCION VILLASIN, FOR
HERSELF AND
(1) declaring that only Branch IV FOR THE
of the Court of First Instance of HEIRS OF THE
Leyte has jurisdiction to take DECEASED
cognizance of the issue of the GERARDO
legality and validity of the VILLASIN —
Project of Partition [Exhibit "B"]
and the two Orders [Exhibits "C" (1) Dismissing the complaint
and "C- 3"] approving the against the defendants
partition; Mariquita Villasin and the heirs
of the deceased Gerardo
(2) dismissing the complaint Villasin;
against Judge Elias B.
Asuncion; (2) Directing the plaintiff to pay
the defendants Mariquita
(3) adjudging the plaintiff, Mrs. Villasin and the heirs of Gerardo
Bernardita R. Macariola to pay Villasin the cost of the suit.
defendant Judge Elias B.
Asuncion, C. IN THE
CASE
(a) the sum of AGAINST THE
FOUR DEFENDANT
HUNDRED SINFOROSA R.
THOUSAND BALES, ET AL.,
PESOS WHO WERE
[P400,000.00] PLAINTIFFS IN
for moral CIVIL CASE
damages; NO. 3010 —

(b) the sum of (1) Dismissing the complaint

TWO against defendants Sinforosa R.
HUNDRED Bales, Adela R. Herrer, Priscilla
THOUSAND R. Solis, Luz R. Bakunawa,
PESOS Anacorita R. Eng and Ruperto
[P200,000.001 O. Reyes.

14 | PART 1 C O N S T I 1 FULLTEXT
 D. IN THE
CASE
AGAINST
DEFENDANT
BONIFACIO
RAMO —
(1) Dismissing the complaint
against Bonifacio Ramo;
(2) Directing the plaintiff to pay
the defendant Bonifacio Ramo
the cost of the suit.
SO ORDERED [pp. 531-533,
rec.]
It is further disclosed by the record that the
aforesaid decision was elevated to the Court of
Appeals upon perfection of the appeal on
February 22, 1971.
I March 6, 1965, respondent's order
WE find that there is no merit in the contention of
complainant Bernardita R. Macariola, under her
first cause of action, that respondent Judge Elias
B. Asuncion violated Article 1491, paragraph 5,
of the New Civil Code in acquiring by purchase a
portion of Lot No. 1184-E which was one of
those properties involved in Civil Case No. 3010.
'That Article provides:
Article 1491. The following
persons cannot acquire by
purchase, even at a public or
judicial action, either in person
or through the mediation of
another:
xxx xxx xxx
(5) Justices, judges, prosecuting
attorneys, clerks of superior and
inferior courts, and other officers
and employees connected with
the administration of justice, the
property and rights in litigation
or levied upon an execution
before the court within whose
jurisdiction or territory they
exercise their respective
functions; this prohibition
includes the act of acquiring by
assignment and shall apply to
lawyers, with respect to the
property and rights which may
be the object of any litigation in
which they may take part by
virtue of their profession
[emphasis supplied].
The prohibition in the aforesaid Article applies
only to the sale or assignment of the property
which is the subject of litigation to the persons
disqualified therein. WE have already ruled that
"... for the prohibition to operate, the sale or
assignment of the property must take
place during the pendency of the litigation
involving the property" (The Director of Lands
vs. Ababa et al., 88 SCRA 513, 519 [1979],
Rosario vda. de Laig vs. Court of Appeals, 86
SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge
purchased on March 6, 1965 a portion of Lot
1184-E, the decision in Civil Case No. 3010
which he rendered on June 8, 1963 was already
final because none of the parties therein filed an
appeal within the reglementary period; hence,
the lot in question was no longer subject of the
litigation. Moreover, at the time of the sale on
dated October 23, 1963 and the amended order
dated November 11, 1963 approving the
October 16, 1963 project of partition made
pursuant to the June 8, 1963 decision, had long
become final for there was no appeal from said
orders.
Furthermore, respondent Judge did not buy the
lot in question on March 6, 1965 directly from the
plaintiffs in Civil Case No. 3010 but from Dr.
Arcadio Galapon who earlier purchased on July
31, 1964 Lot 1184-E from three of the plaintiffs,
namely, Priscilla Reyes, Adela Reyes, and Luz
R. Bakunawa after the finality of the decision in
Civil Case No. 3010. It may be recalled that Lot
1184 or more specifically one-half thereof was
adjudicated in equal shares to Priscilla Reyes,
Adela Reyes, Luz Bakunawa, Ruperto Reyes
and Anacorita Reyes in the project of partition,
and the same was subdivided into five lots
denominated as Lot 1184-A to 1184-E. As
aforestated, Lot 1184-E was sold on July 31,
1964 to Dr. Galapon for which he was issued
TCT No. 2338 by the Register of Deeds of
Tacloban City, and on March 6, 1965 he sold a
portion of said lot to respondent Judge and his
wife who declared the same for taxation
purposes only. The subsequent sale on August
31, 1966 by spouses Asuncion and spouses
Galapon of their respective shares and interest
in said Lot 1184-E to the Traders Manufacturing
and Fishing Industries, Inc., in which respondent
was the president and his wife was the
secretary, took place long after the finality of the
decision in Civil Case No. 3010 and of the
subsequent two aforesaid orders therein
approving the project of partition.
15 | PART 1 C O N S T I 1 FULLTEXT
While it appears that complainant herein filed on
or about November 9 or 11, 1968 an action
before the Court of First Instance of Leyte
docketed as Civil Case No. 4234, seeking to
annul the project of partition and the two orders
approving the same, as well as the partition of
the estate and the subsequent conveyances, the
same, however, is of no moment.
The fact remains that respondent Judge
purchased on March 6, 1965 a portion of Lot
1184-E from Dr. Arcadio Galapon; hence, after
the finality of the decision which he rendered
on June 8, 1963 in Civil Case No. 3010 and his
two questioned orders dated October 23, 1963
and November 11, 1963. Therefore, the property
was no longer subject of litigation.
The subsequent filing on November 9, or 11,
1968 of Civil Case No. 4234 can no longer alter,
change or affect the aforesaid facts — that the
questioned sale to respondent Judge, now Court
of Appeals Justice, was effected and
consummated long after the finality of the
aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-
E to respondent Judge having taken place over
one year after the finality of the decision in Civil
Case No. 3010 as well as the two orders
approving the project of partition, and not during
the pendency of the litigation, there was no
violation of paragraph 5, Article 1491 of the New
Civil Code.
It is also argued by complainant herein that the
sale on July 31, 1964 of Lot 1184-E to Dr.
Arcadio Galapon by Priscilla Reyes, Adela
Reyes and Luz R. Bakunawa was only a mere
scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a
consideration for the approval of the project of
partition. In this connection, We agree with the
findings of the Investigating Justice thus:
And so we are now confronted
with this all-important question
whether or not the acquisition by
respondent of a portion of Lot
1184-E and the subsequent
transfer of the whole lot to
"TRADERS" of which
respondent was the President
and his wife the Secretary, was
intimately related to the Order of
respondent approving the
project of partition, Exh. A.
Respondent vehemently denies
any interest or participation in
the transactions between the
Reyeses and the Galapons
concerning Lot 1184-E, and he
insists that there is no evidence
whatsoever to show that Dr.
Galapon had acted, in the
purchase of Lot 1184-E, in
mediation for him and his wife.
(See p. 14 of Respondent's
Memorandum).
xxx xxx xxx
On this point, I agree with
respondent that there is no
evidence in the record showing
that Dr. Arcadio Galapon acted
as a mere "dummy" of
respondent in acquiring Lot
1184-E from the Reyeses. Dr.
Galapon appeared to this
investigator as a respectable
citizen, credible and sincere,
and I believe him when he
testified that he bought Lot
1184-E in good faith and for
valuable consideration from the
Reyeses without any
intervention of, or previous
understanding with Judge
Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that
respondent Judge acted illegally in approving
the project of partition although it was not signed
by the parties, We quote with approval the
findings of the Investigating Justice, as follows:
1. I agree with complainant that
respondent should have
required the signature of the
parties more particularly that of
Mrs. Macariola on the project of
partition submitted to him for
approval; however, whatever
error was committed by
respondent in that respect was
done in good faith as according
to Judge Asuncion he was
assured by Atty. Bonifacio
Ramo, the counsel of record of
Mrs. Macariola, That he was
authorized by his client to
submit said project of partition,
(See Exh. B and tsn p. 24,
January 20, 1969). While it is
true that such written authority if
there was any, was not
presented by respondent in
evidence, nor did Atty. Ramo
appear to corroborate the
16 | PART 1 C O N S T I 1 FULLTEXT
statement of respondent, his
affidavit being the only one that
was presented as respondent's
Exh. 10, certain actuations of
Mrs. Macariola lead this
investigator to believe that she
knew the contents of the project
of partition, Exh. A, and that she
gave her conformity thereto. I
refer to the following
documents:
1) Exh. 9 — Certified true copy
of OCT No. 19520 covering Lot
1154 of the Tacloban Cadastral
Survey in which the deceased
Francisco Reyes holds a "1/4
share" (Exh. 9-a). On tills
certificate of title the Order
dated November 11, 1963,
(Exh. U) approving the project of
partition was duly entered and
registered on November 26,
1963 (Exh. 9-D);
2) Exh. 7 — Certified copy of a
deed of absolute sale executed
by Bernardita Reyes Macariola
on October 22, 1963, conveying
to Dr. Hector Decena the one-
fourth share of the late
Francisco Reyes-Diaz in Lot
1154. In this deed of sale the
vendee stated that she was the
absolute owner of said one-
fourth share, the same having
been adjudicated to her as her
share in the estate of her father
Francisco Reyes Diaz as per
decision of the Court of First
Instance of Leyte under case
No. 3010 (Exh. 7-A). The deed
of sale was duly registered and
annotated at the back of OCT
19520 on December 3, 1963
(see Exh. 9-e).
In connection with the
abovementioned documents it is
to be noted that in the project of
partition dated October 16,
1963, which was approved by
respondent on October 23,
1963, followed by an amending
Order on November 11, 1963,
Lot 1154 or rather 1/4 thereof
was adjudicated to Mrs.
Macariola. It is this 1/4 share in
Lot 1154 which complainant
sold to Dr. Decena on October
22, 1963, several days after the
17 | PART 1 C O N S T I
preparation of the project of
partition.
Counsel for complainant
stresses the view, however, that
the latter sold her one-fourth
share in Lot 1154 by virtue of
the decision in Civil Case 3010
and not because of the project
of partition, Exh. A. Such
contention is absurd because
from the decision, Exh. C, it is
clear that one-half of one- fourth
of Lot 1154 belonged to the
estate of Francisco Reyes Diaz
while the other half of said one-
fourth was the share of
complainant's mother, Felisa
Espiras; in other words, the
decision did not adjudicate the
whole of the one-fourth of Lot
1154 to the herein complainant
(see Exhs. C-3 & C-4).
Complainant became the owner
of the entire one-fourth of Lot
1154 only by means of the
project of partition, Exh. A.
Therefore, if Mrs. Macariola sold
Lot 1154 on October 22, 1963, it
was for no other reason than
that she was wen aware of the
distribution of the properties of
her deceased father as per
Exhs. A and B. It is also
significant at this point to state
that Mrs. Macariola admitted
during the cross-examination
that she went to Tacloban City
in connection with the sale of
Lot 1154 to Dr. Decena (tsn p.
92, November 28, 1968) from
which we can deduce that she
could not have been kept
ignorant of the proceedings in
civil case 3010 relative to the
project of partition.
Complainant also assails the
project of partition because
according to her the properties
adjudicated to her were
insignificant lots and the least
valuable. Complainant,
however, did not present any
direct and positive evidence to
prove the alleged gross
inequalities in the choice and
distribution of the real properties
when she could have easily
done so by presenting evidence
on the area, location, kind, the
1 FULLTEXT
 assessed and market value of
said properties. Without such
evidence there is nothing in the
record to show that there were
inequalities in the distribution of
the properties of complainant's
father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did
not violate paragraph 5, Article 1491 of the New
Civil Code in acquiring by purchase a portion of
Lot 1184-E which was in litigation in his court, it
was, however, improper for him to have acquired
the same. He should be reminded of Canon 3 of
the Canons of Judicial Ethics which requires
that: "A judge's official conduct should be free
from the appearance of impropriety, and his
personal behavior, not only upon the bench and
in the performance of judicial duties, but also in
his everyday life, should be beyond reproach."
And as aptly observed by the Investigating
Justice: "... it was unwise and indiscreet on the
part of respondent to have purchased or
acquired a portion of a piece of property that
was or had been in litigation in his court and
caused it to be transferred to a corporation of
which he and his wife were ranking officers at
the time of such transfer. One who occupies an
exalted position in the judiciary has the duty and
responsibility of maintaining the faith and trust of
the citizenry in the courts of justice, so that not
only must he be truly honest and just, but his
actuations must be such as not give cause for
doubt and mistrust in the uprightness of his
administration of justice. In this particular case of
respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and
render his actuations open to suspicion and
distrust. Even if respondent honestly believed
that Lot 1184-E was no longer in litigation in his
court and that he was purchasing it from a third
person and not from the parties to the litigation,
he should nonetheless have refrained from
buying it for himself and transferring it to a
corporation in which he and his wife were
financially involved, to avoid possible suspicion
that his acquisition was related in one way or
another to his official actuations in civil case
3010. The conduct of respondent gave cause for
the litigants in civil case 3010, the lawyers
practising in his court, and the public in general
to doubt the honesty and fairness of his
actuations and the integrity of our courts of
justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the
complainant alleged that respondent Judge
violated paragraphs 1 and 5, Article 14 of the
Code of Commerce when he associated himself
with the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking
officer, said corporation having been organized
to engage in business. Said Article provides that:
Article 14 — The following
cannot engage in commerce,
either in person or by proxy, nor
can they hold any office or have
any direct, administrative, or
financial intervention in
commercial or industrial
companies within the limits of
the districts, provinces, or towns
in which they discharge their
duties:
1. Justices of the Supreme
Court, judges and officials of the
department of public
prosecution in active service.
This provision shall not be
applicable to mayors, municipal
judges, and municipal
prosecuting attorneys nor to
those who by chance are
temporarily discharging the
functions of judge or
prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws
or special provisions may not
engage in commerce in a
determinate territory.
It is Our considered view that although the
aforestated provision is incorporated in the Code
of Commerce which is part of the commercial
laws of the Philippines, it, however, partakes of
the nature of a political law as it regulates the
relationship between the government and certain
public officers and employees, like justices and
judges.
Political Law has been defined as that branch of
public law which deals with the organization and
operation of the governmental organs of the
State and define the relations of the state with
the inhabitants of its territory (People vs.
Perfecto, 43 Phil. 887, 897 [1922]). It may be
recalled that political law embraces constitutional
law, law of public corporations, administrative
law including the law on public officers and
elections. Specifically, Article 14 of the Code of
Commerce partakes more of the nature of an
administrative law because it regulates the
conduct of certain public officers and employees
18 | PART 1 C O N S T I 1 FULLTEXT
with respect to engaging in business: hence, vs. 356 Bales of Cotton (1 Pet.
political in essence. [26 U.S.] 511, 542, 7 L. Ed.
242), Chief Justice Marshall
It is significant to note that the present Code of said:
Commerce is the Spanish Code of Commerce of
1885, with some modifications made by the On such
"Commission de Codificacion de las Provincias transfer (by
de Ultramar," which was extended to the cession) of
Philippines by the Royal Decree of August 6, territory, it has
1888, and took effect as law in this jurisdiction never been held
on December 1, 1888. that the
relations of the
Upon the transfer of sovereignty from Spain to inhabitants with
the United States and later on from the United each other
States to the Republic of the Philippines, Article undergo any
14 of this Code of Commerce must be deemed change. Their
to have been abrogated because where there is relations with
change of sovereignty, the political laws of the their former
former sovereign, whether compatible or not with sovereign are
those of the new sovereign, are automatically dissolved, and
abrogated, unless they are expressly re-enacted new relations
by affirmative act of the new sovereign. are created
between them
Thus, We held in Roa vs. Collector of and the
Customs (23 Phil. 315, 330, 311 [1912]) that: government
which has
acquired their
By well-settled public law, upon territory. The
the cession of territory by one same act which
nation to another, either transfers their
following a conquest or country,
otherwise, ... those laws which transfers the
are political in their nature and allegiance of
pertain to the prerogatives of the those who
former government immediately remain in it; and
cease upon the transfer of the law which
sovereignty. (Opinion, Atty. may be
Gen., July 10, 1899). denominated
political, is
While municipal laws of the necessarily
newly acquired territory not in changed,
conflict with the, laws of the new although that
sovereign continue in force which regulates
without the express assent or the intercourse
affirmative act of the conqueror, and general
the political laws do not. conduct of
(Halleck's Int. Law, chap. 34, individuals,
par. 14). However, such political remains in
laws of the prior sovereignty as force, until
are not in conflict with the altered by the
constitution or institutions of the newly- created
new sovereign, may be power of the
continued in force if the State.
conqueror shall so declare by
affirmative act of the Likewise, in People vs. Perfecto (43 Phil. 887,
commander-in-chief during the 897 [1922]), this Court stated that: "It is a
war, or by Congress in time of general principle of the public law that on
peace. (Ely's Administrator vs. acquisition of territory the previous political
United States, 171 U.S. 220, 43 relations of the ceded region are totally
L. Ed. 142). In the case of abrogated. "
American and Ocean Ins. Cos.

19 | PART 1 C O N S T I 1 FULLTEXT
There appears no enabling or affirmative act that
continued the effectivity of the aforestated
provision of the Code of Commerce after the
change of sovereignty from Spain to the United
States and then to the Republic of the
Philippines. Consequently, Article 14 of the
Code of Commerce has no legal and binding
effect and cannot apply to the respondent, then
Judge of the Court of First Instance, now
Associate Justice of the Court of Appeals.
It is also argued by complainant herein that
respondent Judge violated paragraph H, Section
3 of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, which
provides that:
Sec. 3. Corrupt practices of
public officers. — In addition to
acts or omissions of public
officers already penalized by
existing law, the following shall
constitute corrupt practices of
any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or
indirectly having
financial or
pecuniary
interest in any
business,
contract or
transaction in
connection with
which he
intervenes or
takes part in his
official capacity,
or in which he is
prohibited by
the Constitution
or by any Iaw
from having any
interest.
Respondent Judge cannot be held liable under
the aforestated paragraph because there is no
showing that respondent participated or
intervened in his official capacity in the business
or transactions of the Traders Manufacturing and
Fishing Industries, Inc. In the case at bar, the
business of the corporation in which respondent
participated has obviously no relation or
connection with his judicial office. The business
of said corporation is not that kind where
respondent intervenes or takes part in his
capacity as Judge of the Court of First Instance.
As was held in one case involving the
application of Article 216 of the Revised Penal
Code which has a similar prohibition on public
officers against directly or indirectly becoming
interested in any contract or business in which it
is his official duty to intervene, "(I)t is not enough
to be a public official to be subject to this crime;
it is necessary that by reason of his office, he
has to intervene in said contracts or
transactions; and, hence, the official who
intervenes in contracts or transactions which
have no relation to his office cannot commit this
crime.' (People vs. Meneses, C.A. 40 O.G. 11th
Supp. 134, cited by Justice Ramon C. Aquino;
Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the
aforesaid corporation gained any undue
advantage in its business operations by reason
of respondent's financial involvement in it, or that
the corporation benefited in one way or another
in any case filed by or against it in court. It is
undisputed that there was no case filed in the
different branches of the Court of First Instance
of Leyte in which the corporation was either
party plaintiff or defendant except Civil Case No.
4234 entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa O. Bales, et al.," wherein the
complainant herein sought to recover Lot 1184-E
from the aforesaid corporation. It must be noted,
however, that Civil Case No. 4234 was filed only
on November 9 or 11, 1968 and decided on
November 2, 1970 by CFI Judge Jose D.
Nepomuceno when respondent Judge was no
longer connected with the corporation, having
disposed of his interest therein on January 31,
1967.
Furthermore, respondent is not liable under the
same paragraph because there is no provision in
both the 1935 and 1973 Constitutions of the
Philippines, nor is there an existing law
expressly prohibiting members of the Judiciary
from engaging or having interest in any lawful
business.
It may be pointed out that Republic Act No. 296,
as amended, also known as the Judiciary Act of
1948, does not contain any prohibition to that
effect. As a matter of fact, under Section 77 of
said law, municipal judges may engage in
teaching or other vocation not involving the
practice of law after office hours but with the
permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce
which prohibits judges from engaging in
commerce is, as heretofore stated, deemed
abrogated automatically upon the transfer of
sovereignty from Spain to America, because it is
political in nature.
20 | PART 1 C O N S T I 1 FULLTEXT
Moreover, the prohibition in paragraph 5, Article
1491 of the New Civil Code against the
purchase by judges of a property in litigation
before the court within whose jurisdiction they
perform their duties, cannot apply to respondent
Judge because the sale of the lot in question to
him took place after the finality of his decision in
Civil Case No. 3010 as well as his two orders
approving the project of partition; hence, the
property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of
the Civil Service Rules made pursuant to the
Civil Service Act of 1959 prohibits an officer or
employee in the civil service from engaging in
any private business, vocation, or profession or
be connected with any commercial, credit,
agricultural or industrial undertaking without a
written permission from the head of department,
the same, however, may not fall within the
purview of paragraph h, Section 3 of the Anti-
Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition
by the Constitution or law on any public officer
from having any interest in any business and not
by a mere administrative rule or regulation.
Thus, a violation of the aforesaid rule by any
officer or employee in the civil service, that is,
engaging in private business without a written
permission from the Department Head may not
constitute graft and corrupt practice as defined
by law.
On the contention of complainant that
respondent Judge violated Section 12, Rule
XVIII of the Civil Service Rules, We hold that the
Civil Service Act of 1959 (R.A. No. 2260) and
the Civil Service Rules promulgated thereunder,
particularly Section 12 of Rule XVIII, do not
apply to the members of the Judiciary. Under
said Section 12: "No officer or employee shall
engage directly in any private business,
vocation, or profession or be connected with any
commercial, credit, agricultural or industrial
undertaking without a written permission from
the Head of Department ..."
It must be emphasized at the outset that
respondent, being a member of the Judiciary, is
covered by Republic Act No. 296, as amended,
otherwise known as the Judiciary Act of 1948
and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to
remove or dismiss judges was then vested in the
President of the Philippines, not in the
Commissioner of Civil Service, and only on two
grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of
the Supreme Court, which alone is authorized,
upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct
the corresponding investigation. Clearly, the
aforesaid section defines the grounds and
prescribes the special procedure for the
discipline of judges.
And under Sections 5, 6 and 7, Article X of the
1973 Constitution, only the Supreme Court can
discipline judges of inferior courts as well as
other personnel of the Judiciary.
It is true that under Section 33 of the Civil
Service Act of 1959: "The Commissioner may,
for ... violation of the existing Civil Service Law
and rules or of reasonable office regulations, or
in the interest of the service, remove any
subordinate officer or employee from the
service, demote him in rank, suspend him for not
more than one year without pay or fine him in an
amount not exceeding six months' salary." Thus,
a violation of Section 12 of Rule XVIII is a
ground for disciplinary action against civil service
officers and employees.
However, judges cannot be considered as
subordinate civil service officers or employees
subject to the disciplinary authority of the
Commissioner of Civil Service; for, certainly, the
Commissioner is not the head of the Judicial
Department to which they belong. The Revised
Administrative Code (Section 89) and the Civil
Service Law itself state that the Chief Justice is
the department head of the Supreme Court
(Sec. 20, R.A. No. 2260) [1959]); and under the
1973 Constitution, the Judiciary is the only other
or second branch of the government (Sec. 1, Art.
X, 1973 Constitution). Besides, a violation of
Section 12, Rule XVIII cannot be considered as
a ground for disciplinary action against judges
because to recognize the same as applicable to
them, would be adding another ground for the
discipline of judges and, as aforestated, Section
67 of the Judiciary Act recognizes only two
grounds for their removal, namely, serious
misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil
Service Act of 1959, it is the Commissioner of
Civil Service who has original and exclusive
jurisdiction "(T)o decide, within one hundred
twenty days, after submission to it, all
administrative cases against permanent officers
and employees in the competitive service, and,
except as provided by law, to have final authority
to pass upon their removal, separation, and
suspension and upon all matters relating to the
conduct, discipline, and efficiency of such
officers and employees; and prescribe
standards, guidelines and regulations governing
the administration of discipline" (emphasis
supplied). There is no question that a judge
21 | PART 1 C O N S T I 1 FULLTEXT
belong to the non-competitive or unclassified
service of the government as a Presidential
appointee and is therefore not covered by the
aforesaid provision. WE have already ruled that
"... in interpreting Section 16(i) of Republic Act
No. 2260, we emphasized that only permanent
officers and employees who belong to the
classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service"
(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965],
Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in
engaging in private business by joining the
Traders Manufacturing and Fishing Industries,
Inc. as a stockholder and a ranking officer, is not
violative of the provissions of Article 14 of the
Code of Commerce and Section 3(h) of the Anti-
Graft and Corrupt Practices Act as well as
Section 12, Rule XVIII of the Civil Service Rules
promulgated pursuant to the Civil Service Act of
1959, the impropriety of the same is clearly
unquestionable because Canon 25 of the
Canons of Judicial Ethics expressly declares
that:
A judge should abstain from
making personal investments in
enterprises which are apt to be
involved in litigation in his court;
and, after his accession to the
bench, he should not retain
such investments previously
made, longer than a period
sufficient to enable him to
dispose of them without serious
loss. It is desirable that he
should, so far as reasonably
possible, refrain from all
relations which would normally
tend to arouse the suspicion
that such relations warp or bias
his judgment, or prevent his
impartial attitude of mind in the
administration of his judicial
duties. ...
WE are not, however, unmindful of the fact that
respondent Judge and his wife had withdrawn
on January 31, 1967 from the aforesaid
corporation and sold their respective shares to
third parties, and it appears also that the
aforesaid corporation did not in anyway benefit
in any case filed by or against it in court as there
was no case filed in the different branches of the
Court of First Instance of Leyte from the time of
the drafting of the Articles of Incorporation of the
corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the
eventual withdrawal of respondent on January
31, 1967 from said corporation. Such disposal or
sale by respondent and his wife of their shares
in the corporation only 22 days after the
incorporation of the corporation, indicates that
respondent realized that early that their interest
in the corporation contravenes the aforesaid
Canon 25. Respondent Judge and his wife
therefore deserve the commendation for their
immediate withdrawal from the firm after its
incorporation and before it became involved in
any court litigation
III
With respect to the third and fourth causes of
action, complainant alleged that respondent was
guilty of coddling an impostor and acted in
disregard of judicial decorum, and that there was
culpable defiance of the law and utter disregard
for ethics. WE agree, however, with the
recommendation of the Investigating Justice that
respondent Judge be exonerated because the
aforesaid causes of action are groundless, and
WE quote the pertinent portion of her report
which reads as follows:
The basis for complainant's third
cause of action is the claim that
respondent associated and
closely fraternized with
Dominador Arigpa Tan who
openly and publicly advertised
himself as a practising attorney
(see Exhs. I, I-1 and J) when in
truth and in fact said Dominador
Arigpa Tan does not appear in
the Roll of Attorneys and is not
a member of the Philippine Bar
as certified to in Exh. K.
The "respondent denies
knowing that Dominador Arigpa
Tan was an "impostor" and
claims that all the time he
believed that the latter was
a bona fide member of the bar. I
see no reason for disbelieving
this assertion of respondent. It
has been shown by complainant
that Dominador Arigpa Tan
represented himself publicly as
an attorney-at-law to the extent
of putting up a signboard with
his name and the words
"Attorney-at Law" (Exh. I and 1-
1) to indicate his office, and it
was but natural for respondent
and any person for that matter
to have accepted that statement
on its face value. "Now with
respect to the allegation of
complainant that respondent is
22 | PART 1 C O N S T I 1 FULLTEXT
 guilty of fraternizing with WHEREFORE, THE RESPONDENT
Dominador Arigpa Tan to the ASSOCIATE JUSTICE OF THE COURT OF
extent of permitting his wife to APPEALS IS HEREBY REMINDED TO BE
be a godmother of Mr. Tan's MORE DISCREET IN HIS PRIVATE AND
child at baptism (Exh. M & M-1), BUSINESS ACTIVITIES.
that fact even if true did not
render respondent guilty of SO ORDERED.
violating any canon of judicial
ethics as long as his friendly Teehankee, Guerrero, De Castro, Melencio-
relations with Dominador A. Tan Herrera, Plana, Vasquez, Relova and Gutierrez,
and family did not influence his JJ., concur.
official actuations as a judge
where said persons were
concerned. There is no tangible Concepcion Jr., J., is on leave.
convincing proof that herein
respondent gave any undue Fernando, C.J., Abad Santos and Esolin JJ.,
privileges in his court to took no part.
Dominador Arigpa Tan or that
the latter benefitted in his
practice of law from his personal
relations with respondent, or Separate Opinions
that he used his influence, if he
had any, on the Judges of the
other branches of the Court to
favor said Dominador Tan.
AQUINO, J., concurring and dissenting:
Of course it is highly desirable
I vote for respondent's unqualified exoneration.
for a member of the judiciary to
refrain as much as possible
from maintaining close friendly BARREDO, J., concurring and dissenting:
relations with practising
attorneys and litigants in his I vote with Justice Aquino.
court so as to avoid suspicion
'that his social or business
relations or friendship constitute
an element in determining his Separate Opinions
judicial course" (par. 30, Canons
of Judicial Ethics), but if a Judge
AQUINO, J., concurring and dissenting:
does have social relations, that
in itself would not constitute a
ground for disciplinary action I vote for respondent's unqualified exoneration.
unless it be clearly shown that
his social relations be clouded BARREDO, J., concurring and dissenting:
his official actuations with bias
and partiality in favor of his I vote with Justice Aquino.
friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion,

now Associate Justice of the Court of Appeals,
did not violate any law in acquiring by purchase
a parcel of land which was in litigation in his
court and in engaging in business by joining a
private corporation during his incumbency as
judge of the Court of First Instance of Leyte, he
should be reminded to be more discreet in his
private and business activities, because his
conduct as a member of the Judiciary must not
only be characterized with propriety but must
always be above suspicion.

23 | PART 1 C O N S T I 1 FULLTEXT
 EN BANC
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE
SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF JUSTICE AND THE
SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA,
ALEJANDRO ROCES, MANUEL CRUDO,
ANTONIO U. MIRANDA, EMILIO DE PERALTA
AND LORENZO M. 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.
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.
24 | PART 1 C O N S T I 1 FULLTEXT
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
25 | PART 1 C O N S T I
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.
1 FULLTEXT
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
26 | PART 1 C O N S T I
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 FULLTEXT
 [1] The New the plebiscite on
Society; the new
Constitution to
[2] Reforms be held?
instituted under [Bulletin Today,
Martial Law; January 5,
1973].
[3] The holding
of a plebiscite "9. That the voting by the so-
on the proposed called Citizens Assemblies was
new announced to take place during
Constitution and the period from January 10 to
when (the January 15, 1973;
tentative new
dates given "10. That on January 10, 1973,
following the it was reported that on more
postponement question would be added to the
of the plebiscite four (4) question previously
from the original announced, and that the forms
date of January of the question would be as
15 are February follows: —
19 and March
5); [1] Do you like
the New
[4] The opening Society?
of the regular
session slated [2] Do you like
on January 22 the reforms
in accordance under martial
with the existing law?
Constitution
despite Martial
[3] Do you like
Law." [Bulletin
Congress again
Today, January to hold
3, 1973.] sessions?

"8. That it was later reported

[4] Do you like
that the following are to be the
the plebiscite to
forms of the questions to be be held later?
asked to the Citizens
Assemblies: —
[5] Do you like
the way
[1] Do you President
approve of the Marcos running
New Society? the affairs of the
government? [B
[2] Do you ulletin Today,
approve of the January 10,
reform 1973; emphasis
measures under an additional
martial law? question.]

[3] Do you think "11. That on January 11, 1973,

that Congress it was reported that six (6) more
should meet questions would be submitted to
again in regular the so-called Citizens
session? Assemblies: —

[4] How soon

would you like
27 | PART 1 C O N S T I 1 FULLTEXT
 [1] Do you COMMENTS ON
approve of the
citizens QUESTION No.
assemblies as 1
the base of
popular
I
government to
n
decide issues of
national o
interests?
r
d
[2] Do you e
approve of the r
new
Constitution? t
o
[3] Do you want
a plebiscite to b
be called to r
ratify the new o
Constitution? a
d
[4] Do you want e
the elections to n
be held in
November, t
1973 in h
accordance with e
the provisions
of the 1935 b
Constitution? a
s
e
[5] If the
elections would
not be held, o
when do you f
want the next
c
elections to be
i
called?
t
i
[6] Do you want z
martial law to e
continue? n
[Bulletin Today, s
January 11, '
1973; emphasis
supplied] p
a
"12. That according to reports, r
the returns with respect to the t
six (6) additional questions i
quoted above will be on a form c
similar or identical to Annex "A" i
hereof; p
a
"13. That attached to page 1 of t
Annex "A" is another page, i
which we marked as Annex "A- o
1", and which reads: — n

28 | PART 1 C O N S T I 1 FULLTEXT
 i We are sick and
n tired of too
frequent
g elections. We
o are fed up with
v politics, of so
e many debates
r and so much
n expenses.
m
e QUESTION No.
n 5
t
. Probably a
period of at
QUESTION No. least seven (7)
2 years
moratorium on
But we do not elections will be
want the Ad enough for
Interim stability to be
Assembly to be established in
convoked. Or if the country, for
it is to be reforms to take
convened at all, root and
it should not be normalcy to
done so until return.
after at least
seven (7) years QUESTION No.
from the 6
approval of the
New
We want
Constitution by
President
the Citizens
Marcos to
Assemblies. continue with
Martial Law. We
QUESTION No. want him to
3 exercise his
powers with
The vote of the more authority.
Citizens We want him to
Assemblies be strong and
should already firm so that he
be considered can accomplish
the plebiscite on all his reform
the New programs and
Constitution. establish
normalcy in the
If the Citizens country. If all
Assemblies other measures
approve of the fail, we want
New President
Constitution, Marcos to
then the new declare a
Constitution revolutionary
should be government
deemed ratified. along the lines
of the new
Constitution
QUESTION No.
without the ad
4
29 | PART 1 C O N S T I 1 FULLTEXT
 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 in relation to the question
the radio, on January 7, 1973, following it: —
the President announced that
the limited freedom of debate on D
the proposed Constitution was o
being withdrawn and that the
proclamation of martial law and y
the orders and decrees issued o
thereunder would thenceforth u
strictly be enforced [Daily
Express, January 8, 1973]; s
t
15. That petitioners have reason i
to fear, and therefore state, that l
the question added in the last l
list of questions to be asked to
the Citizens Assemblies, w
namely: — a
n
D t
o
a
y
o p
u l
e
30 | PART 1 C O N S T I 1 FULLTEXT
 b on the proposed Constitution is
i now pending;
s
c "16. That petitioners have
i reason to fear, and therefore
t allege, that if an affirmative
e answer to the two questions just
referred to will be reported then
t this Honorable Court and the
o entire nation will be confronted
with a fait accompli which has
b been attained in a highly
e unconstitutional and
undemocratic manner;
c
a "17. That the fait accompli would
l
consist in the supposed
l
expression of the people
e
approving the proposed
d Constitution;
t
o "18. That, if such event would
happen, then the case before
r this Honorable Court could, to
a all intents and purposes,
t become moot because,
i petitioners fear, and they
f therefore allege, that on the
y basis of such supposed
expression of the will of the
t people through the Citizens
h Assemblies, it would be
e announced that the proposed
Constitution, with all its defects,
n both congenital and otherwise,
e has been ratified;
w
"19. That, in such a situation the
C Philippines will be facing a real
o crisis and there is likelihood of
n confusion if not chaos, because
s then, the people and their
t officials will not know which
i Constitution is in force.
t
u "20. That the crisis mentioned
t above can only be avoided if
i this Honorable Court will
o immediately decide and
n announce its decision on the
? present petition;
"
"21. That with the withdrawal by
— the President of the limited
freedom of discussion on the
would be an attempt to by-pass proposed Constitution which
and short-circuit this Honorable was given to the people
Court before which the question pursuant to Sec. 3 of
of the validity of the plebiscite Presidential Decree No. 73, the
opposition of respondents to
31 | PART 1 C O N S T I 1 FULLTEXT
petitioners' prayer at the subordinates
plebiscite be prohibited has now and substitutes,
collapsed and that a free and all other
plebiscite can no longer be officials and
held." persons who
may be
At about the same time, a assigned such
similar prayer was made in a task, from
"manifestation" filed by the collecting,
petitioners in L-35949, "Gerardo certifying, and
Roxas, et al. v. Commission on announcing and
Elections, et al.," and L-35942, reporting to the
"Sedfrey A. Ordoñez, et al. v. President or
The National Treasurer, et al." other officials
concerned, the
so-called
The next day, January 13, 1973,
Citizens'
which was a Saturday, the Court
Assemblies
issued a resolution requiring the
referendum
respondents in said three (3)
cases to comment on said results allegedly
"urgent motion" and obtained when
they were
"manifestation," "not later than
supposed to
Tuesday noon, January 16,
have met during
1973." Prior thereto, or on
January 15, 1973, shortly before the period
noon, the petitioners in said comprised
between
Case G.R. No. L-35948 riled a
January 10 and
"supplemental motion for
January 15,
issuance of restraining order
1973, on the
and inclusion of additional
respondents," praying — two questions
quoted in
paragraph 1 of
"... that a this
restraining Supplemental
order be issued Urgent Motion."
enjoining and
restraining
In support of this prayer, it was
respondent
alleged —
Commission on
Elections, as
well as the "3. That petitioners are now
Department of before this Honorable Court in
Local order to ask further that this
Governments Honorable Court issue a
and its head, restraining order enjoining
Secretary Jose herein respondents, particularly
Roño; the respondent Commission on
Department of Elections as well as the
Agrarian Department of Local
Reforms and its Governments and its head,
head, Secretary Secretary Jose Roño; the
Conrado Department of Agrarian
Estrella; the Reforms and its head, Secretary
National Conrado Estrella; the National
Ratification Ratification Coordinating
Coordinating Committee and its Chairman,
Committee and Guillermo de Vega; and their
its Chairman, deputies, subordinates and/or
Guillermo de substitutes, from collecting,
Vega; their certifying, announcing and
deputies, reporting to the President the
32 | PART 1 C O N S T I 1 FULLTEXT
supposed Citizens' Assemblies Constitution
referendum results allegedly have provisions
obtained when they were for the secrecy
supposed to have met during of choice and of
the period between January 10 vote, which is
and January 15, 1973, one of the
particularly on the two questions safeguards of
quoted in paragraph 1 of this freedom of
Supplemental Urgent Motion; action, but
votes in the
"4. That the proceedings of the Citizens'
so-called Citizens' Assemblies Assemblies
are illegal, null and void were open and
particularly insofar as such were cast by
proceedings are being made the raising hands;
basis of a supposed consensus
for the ratification of the [c] The Election
proposed Constitution because: Code makes
— ample
provisions for
[a] The free, orderly
elections and honest
contemplated in elections, and
the Constitution, such provisions
Article XV, at are a minimum
which the requirement for
proposed elections or
constitutional plebiscites for
amendments the ratification
are to be of constitutional
submitted for amendments,
ratification, are but there were
elections at no similar
which only provisions to
qualified and guide and
duly registered regulate
voters are proceedings of
permitted to the so called
vote, whereas, Citizens'
the so called Assemblies;
Citizens'
Assemblies [d] It is seriously
were to be doubted
participated in that, for lack of
by persons 15 material time,
years of age more than a
and older, handful of the
regardless of so called
qualifications or Citizens'
lack thereof, as Assemblies
prescribed in have been
the Election actually formed,
Code; because the
mechanics of
[b] Elections or their
plebiscites for organization
the ratification were still being
of constitutional discussed a day
amendments or so before the
contemplated in day they were
Article XV of the supposed to
33 | PART 1 C O N S T I 1 FULLTEXT
begin e
functioning: — n

" m
P e
r e
o t
v i
i n
n g
c
i w
a i
l t
h
g
o b
v a
e r
r r
n i
o o
r
s c
a
a p
n t
d a
i
c n
i s
t
y a
n
a d
n
d c
o
m m
u m
n u
i n
c i
i t
p y
a
l l
e
m a
a d
y e
o r
r s
s
s
h i
a n
d c
e
b
e l

34 | PART 1 C O N S T I 1 FULLTEXT
a h
s e
t
f
M o
o r
n m
d a
a t
y i
o
[ n
J
a o
n f
u
a t
r h
y e

8 C
, i
t
1 i
9 z
7 e
3 n
) s

t A
o s
s
t e
h m
r b
e l
s i
h e
s
o
u a
t n
d
t
h t
e h
e
m
e t
c o
h p
a i
n c
i s
c
s f
o
i r
n
d
t i

35 | PART 1 C O N S T I 1 FULLTEXT
 s "5. That for lack of material time,
c the appropriate amended
u petition to include the additional
s officials and government
s agencies mentioned in
i paragraph 3 of this
o Supplemental Urgent Motion
n could not be completed
. because, as noted in the Urgent
" Motion of January 12, 1973, the
submission of the proposed
[ Constitution to the Citizens'
B Assemblies was not made
u known to the public until
l January 11, 1973. But be that
l as it may, the said additional
e officials and agencies may be
t properly included in the petition
i at bar because: —
n
[a] The herein
T petitioners have
o prayed in their
d petition for the
a annulment not
y only of
, Presidential
Decree No. 73,
J but also of "any
a similar decree,
n proclamation,
u order or
a instruction.
r
y
so that Presidential Decree No.
86, insofar at least as it attempts
1 to submit the proposed
0 Constitution to a plebiscite by
,
the so-called Citizens'
Assemblies, is properly in issue
1
in this case, and those who
9
enforce, implement, or carry out
7 the said Presidential Decree No.
3
86. and the instructions
]
incidental thereto clearly fall
within the scope of this petition;
"It should be recalled that the
Citizens' Assemblies were [b] In their
ordered formed only at the
petition,
beginning of the year [Daily
petitioners
Express, January 1, 1973], and
sought the
considering the lack of
issuance of a
experience of the local writ of
organizers of said assemblies, preliminary
as well as the absence of
injunction
sufficient guidelines for
restraining not
organization, it is too much to
only the
believe that such assemblies
respondents
could be organized at such a named in the
short notice. petition but also
their "agents"
36 | PART 1 C O N S T I 1 FULLTEXT
 from required by law
implementing to perform
not only duties relative
Presidential to the conduct
Decree No. 73, of elections on
but also "any matters
other similar pertaining to the
decree, order, enforcement of
instruction, or the provisions
proclamation in of this Code ..."
relation to the [Election Code
holding of a of 1971, Sec.
plebiscite on 3].
January 15,
1973 for the "6. That unless the petition at
purpose of bar is decided immediately and
submitting to the Commission on Elections,
the Filipino together with the officials and
people for their government agencies
ratification or mentioned in paragraph 3 of this
rejection the Supplemental Urgent Motion are
1972 Draft or restrained or enjoined from
proposed collecting, certifying, reporting or
Constitution announcing to the President the
approved by the results of the alleged voting of
Constitutional the so-called Citizens'
Convention on Assemblies, irreparable damage
November 30, will be caused to the Republic of
1972"; and the Philippines, the Filipino
finally, people, the cause of freedom an
democracy, and the petitioners
[c] Petitioners herein because:
prayed for such
other relief [a] After the
which may be result of the
just and supposed
equitable. [p. voting on the
39, Petition]. questions
mentioned in
"Therefore, viewing the case paragraph 1
from all angles, the officials and hereof shall
government agencies have been
mentioned in paragraph 3 of this announced, a
Supplemental Urgent Motion, conflict will arise
can lawfully be reached by the between those
processes of this Honorable who maintain
Court by reason of this petition, that the 1935
considering, furthermore, that Constitution is
the Commission on Elections still in force, on
has under our laws the power, the one hand,
among others, of: — and those who
will maintain
(a) Direct and that it has been
immediate superseded by
supervision and the proposed
control over Constitution, on
national, the other,
provincial, city, thereby creating
municipal and confusion, if not
municipal chaos;
district officials
37 | PART 1 C O N S T I 1 FULLTEXT
 [b] Even the parties in G.R. No. L-35948 —
jurisdiction of inasmuch as the hearing in
this Court will connection therewith was still
be subject to going on — and the public there
serious attack present that the President had,
because the according to information
advocates of conveyed by the Secretary of
the theory that Justice, signed said
the proposed Proclamation No. 1102, earlier
Constitution has that morning. Thereupon, the
been ratified by writer read Proclamation No.
reason of the 1102 which is of the following
announcement tenor:
of the results of
the proceedings "BY THE PRESIDENT OF THE PHILIPPINES
of the so-called
Citizens'
"PROCLAMATION NO. 1102
Assemblies will
argue that,
General Order "ANNOUNCING THE
No. 3, which RATIFICATION BY THE
shall also be FILIPINO PEOPLE OF THE
deemed ratified CONSTITUTION PROPOSED
pursuant to the BY THE 1971
Transitory CONSTITUTIONAL
Provisions of CONVENTION.
the proposed
Constitution, "WHEREAS, the Constitution
has placed proposed by the nineteen
Presidential hundred seventy-one
Decree Nos. 73 Constitutional Convention is
and 86 beyond subject to ratification by the
the reach and Filipino people;
jurisdiction of
this Honorable "WHEREAS, Citizens
Court." Assemblies were created in
barrios, in municipalities and in
On the same date — January districts/wards in chartered
15, 1973 — the Court passed a cities pursuant to Presidential
resolution requiring the Decree No. 86, dated December
respondents in said case G.R. 31, 1972, composed of all
No. L-35948 to file "file an persons who are residents of
answer to the said motion not the barrio, district or ward for at
later than 4 P.M., Tuesday, least six months, fifteen years of
January 16, 1973," and setting age or over, citizens of the
the motion for hearing "on Philippines and who are
January 17, 1973, at 9:30 a.m." registered in the list of Citizen
While the case was being Assembly members kept by the
heard, on the date last barrio, district or ward secretary;
mentioned, at noontime, the
Secretary of Justice called on "WHEREAS, the said Citizens
the writer of this opinion and Assemblies were established
said that, upon instructions of precisely to broaden the base of
the President, he (the Secretary citizen participation in the
of Justice) was delivering to him democratic process and to
(the writer) a copy of afford ample opportunity for the
Proclamation No. 1102, which citizenry to express their views
had just been signed by the on important national issues;
President. Thereupon, the writer
returned to the Session Hall and "WHEREAS, responding to the
announced to the Court, the clamor of the people and
38 | PART 1 C O N S T I 1 FULLTEXT
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?
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.

"WHEREAS, fourteen million "Done in the City of Manila, this

nine hundred seventy-six 17th day of January, in the year
thousand five hundred sixty-one of Our Lord, nineteen hundred
(14,976,561) members of all the and seventy-three.
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
39 | PART 1 C O N S T I 1 FULLTEXT

"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 deemedh it
best that each Member writei his
own views thereon and that l
thereafter the Chief Justice
i
should state the result orpthe
votes thus cast on the points
p in
issue. Hence, the individual
i
views of my brethren in then
Court are set forth in the e
opinions attached hereto,s
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
40 | PART 1 C O N S T I 1 FULLTEXT
Barredo, Makasiar and Antonio be determined
hold the same view. by the Court,
and that the
5. On the question whether the "purported
proclamation of Martial Law ratification of
affected the proper submission the Proposed
of the proposed Constitution to Constitution ...
a plebiscite, insofar as the based on the
freedom essential therefor is referendum
concerned, Justice Fernando is among Citizens'
of the opinion that there is a Assemblies falls
repugnancy between the short of being in
election contemplated under Art. strict conformity
XV of the 1935 Constitution and with the
the existence of Martial Law, requirements of
and would, therefore, grant the Article XV of the
petitions were they not moot 1935
and academic. Justices Constitution,"
Barredo, Antonio and Esguerra but that such
are of the opinion that issue unfortunate
involves questions of fact which drawback
cannot be predetermined, and notwithstanding,
that Martial Law per se does not "considering all
necessarily preclude the factual other related
possibility of adequate freedom, relevant
for the purposes contemplated. circumstances,
... the new
Constitution is
6. On Presidential Proclamation
legally
No. 1102, the following views
recognizable
were expressed:
and should be
recognized as
a. Justices legitimately in
Makalintal, force."
Castro,
Fernando,
Teehankee, c. Justice
Makasiar, Zaldivar
maintains
Esguerra and
unqualifiedly
myself are of
that the
the opinion that
Proposed
the question of
validity of said Constitution has
not been ratified
Proclamation
in accordance
has not been
with Article XV
properly raised
of the 1935
before the
Court, which, Constitution,
accordingly, and that,
accordingly, it
should not pass
has no force
upon such
and effect
question.
whatsoever.
b. Justice
d. Justice
Barredo holds
Antonio feels
that the issue
"that the Court
on the
is not
constitutionality
of Proclamation competent to
No. 1102 has act" on the
issue whether
been submitted
the Proposed
to and should
41 | PART 1 C O N S T I 1 FULLTEXT
 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, with three (3) members
1 the Budget Commissioner and the Auditor
dissenting, with respect to G.R. No. L-35948,
2 General.
only and another member dissenting, as
3
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 Service on 4
February 3, 1973, by Eddie Monteclaro,
personally and as President of the National
Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public
Information, the Auditor General, the Budget
Commissioner and the National Treasurer and 5
on February 12, 1973, by Napoleon V. Dilag,
Alfredo Salapantan, Jr., Leonardo Asodisen, Jr.
and Raul M. Gonzales, against the Executive
6
Secretary, the Secretary of National Defense,
Likewise, on January 23, 1973, Gerardo Roxas,
Ambrosio Padilla, Jovito R. Salonga, Salvador
H. Laurel, Ramon V. Mitra, Jr. and Eva Estrada-
7
Kalaw, the first as "duly elected Senator and
Minority Floor Leader of the Senate," and others
as "duly elected members" thereof, filed Case
G.R. No. L-36165, against the Executive
Secretary, the Secretary National Defense, the
Chief of Staff of the Armed Forces of the
Philippines, the Secretary of General Services,
the President and the President Pro Tempore of
the Senate. In their petition — as amended on
January 26, 1973 — petitioners Gerardo Roxas,
et al. allege, inter alia, that the term of office of
three of the aforementioned petitioners would8
42 | PART 1 C O N S T I 1 FULLTEXT
expire on December 31, 1975, and that of the
others on December 31, 1977; that pursuant to
9
our 1935 Constitution, "which is still in force
Congress of the Philippines "must convene for
its 8th Session on Monday, January 22, 1973, at
10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from
10:00 A.M. up to the afternoon," said petitioner
"along with their other colleagues, were
unlawfully prevented from using the Senate
Session Hall, the same having been closed by
the authorities in physical possession and
control the Legislative Building"; that "(a)t about
5:00 to 6:00 P.M. the said day, the premises of
the entire Legislative Building were ordered
cleared by the same authorities, and no one was
allowed to enter and have access to said
premises"; that "(r)espondent Senate President
Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by
petitioning Senators to perform their duties
under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from
doing so"; that the petitioners ready and willing
to perform their duties as duly elected members
of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive
Secretary and Chief of Staff, "through their
agents and representatives, are preventing
petitioners from performing their duties as duly
elected Senators of the Philippines"; that "the
Senate premise in the Congress of the
Philippines Building ... are occupied by and are
under the physical control of the elements
military organizations under the direction of said
respondents"; that, as per "official reports, the
Department of General Services ... is now the
civilian agency in custody of the premises of the
Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue
to so exclude and prevent" the petitioners "from
the performance of their sworn duties, invoking
the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the
so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by
virtue of Proclamation No. 1102 signed and
issued by the President of the Philippines"; that
"the alleged creation of the Citizens' Assemblies
as instrumentalities for the ratification of the
Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional;
that respondents Senate President and Senate
President Pro Tempore "have unlawfully
refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the
performance of their duties and functions as
such officers under the law and the Rules of the
Senate" quoted in the petition; that because of
events supervening the institution of the
plebiscite cases, to which reference has been
made in the preceding pages, the Supreme
Court dismissed said cases on January 22,
1973, by a majority vote, upon the ground that
the petitions therein had become moot and
academic; that the alleged ratification of the
1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have
superseded and revoked the 1935 Constitution,"
for the reasons specified in the petition as
amended; that, by acting as they did, the
respondents and their "agents, representatives
and subordinates ...have excluded the
petitioners from an office to which" they "are
lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from
convening the Senate for its 8th session,
assuming general jurisdiction over the Session
Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a
writ of mandamus is warranted in order to
compel them to comply with the duties and
functions specifically enjoined by law"; and that
"against the above mentioned unlawful acts of
the respondents, the petitioners have no appeal
nor other speedy and adequate remedy in the
ordinary course of law except by invoking the
equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary
mandatory injunction."
Premised upon the foregoing allegations, said
petitioners prayed that, "pending hearing on the
merits, a writ of preliminary mandatory injunction
be issued ordering respondents Executive
Secretary, the Secretary of National Defense,
the Chief of Staff of the Armed Forces of the
Philippines, and the ... Secretary of General
Service, as well as all their agents,
representatives and subordinates to vacate the
premises of the Senate of the Philippines and to
deliver physical possession of the same to the
President of the Senate or his authorized
representative"; and that hearing, judgment be
rendered declaring null and Proclamation No.
1102 ... and any order, decree, proclamation
having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for
against above-mentioned respondents, and
making the writ injunction permanent; and that a
writ of mandamus be issued against the
respondents Gil J. Puyat and Jose Roy directing
them to comply with their duties and functions as
President and President Pro Tempore,
respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate."
Required to comment on the above-mentioned
petitions and/or amended petitions, respondents
filed, with the leave Court first had and obtained,
a consolidated comment on said petitions and/or
amended petitions, alleging that the same ought
43 | PART 1 C O N S T I 1 FULLTEXT
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 agreed that the same be, likewise,
10
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
44 | PART 1 C O N S T I 1 FULLTEXT
manageable standards" and because "the
access to relevant information is insufficient to
assure the correct determination of the issue,"
apart from the circumstance that "the new
constitution has been promulgated and great
interests have already arisen under it" and that
the political organ of the Government has
recognized its provisions; whereas, Mr. Justice
Esguerra had postulated that "(w)ithout any
competent evidence ... about the circumstances
attending the holding" of the "referendum or
plebiscite" thru the Citizens' Assemblies, he
"cannot say that it was not lawfully held" and
that, accordingly, he assumed "that what the
proclamation (No. 1102) says on its face is true
and until overcome by satisfactory evidence" he
could not "subscribe to the claim that such
plebiscite was not held accordingly"; and that he
accepted "as a fait accompli that the Constitution
adopted (by the 1971 Constitutional Convention)
on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose
Roy goes on to say that, under these
circumstances, "it seems remote or improbable
that the necessary eight (8) votes under the
1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution,
can be obtained for the relief sought in the
Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with,
Mr. Justice Barredo announced publicly, in open
court, during the hearing of these cases, that he
was and is willing to be convinced that his
aforementioned opinion in the plebiscite cases
should be reconsidered and changed. In effect,
he thus declared that he had an open mind in
connection with the cases at bar, and that in
deciding the same he would not necessarily
adhere to said opinion if the petitioners herein
succeeded in convincing him that their view
should be sustained.
Secondly, counsel for the aforesaid respondents
had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to
declare invalid the contested Proclamation No.
1102. I do not believe that this assumption is
borne out by any provision of said Constitution.
Section 10 of Article VIII thereof reads:
All cases involving the
constitutionality of a treaty or
law shall be heard and decided
by the Supreme Court in banc,
and no treaty or law may be
declared unconstitutional
without the concurrence of two
thirds of all the members of the
Court.
Pursuant to this section, the concurrence of two-
thirds of all the Members of the Supreme Court
is required only to declare "treaty or law"
unconstitutional. Construing said provision, in a
resolution dated September 16, 1949, then Chief
Justice Moran, voicing the unanimous view of
the Members of this Court, postulated:
... There is nothing either in the
Constitution or in the Judiciary
Act requiring the vote of eight
Justices to nullify a rule or
regulation or an executive order
issued by the President. It is
very significant that in the
previous drafts of section 10,
Article VIII of the Constitution,
"executive order" and
"regulation" were
included among those that
required for their nullification the
vote of two-thirds of all the
members of the Court. But
"executive order" and
"regulation" were
later deleted from the final draft
(Aruego, The Framing of the
Philippine Constitution, Vol. I,
pp. 495, 496), and thus a mere
majority of six members of this
Court is enough to nullify
them. 11
The distinction is not without reasonable
foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to
treaty and law, because, in these cases, the
participation of the two other departments of the
government — the Executive and the Legislative
— is present, which circumstance is absent in
the case of rules, regulations and executive
orders. Indeed, a law (statute) passed by
Congress is subject to the approval or veto of
the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3)
of all members of each House of Congress. A 12
treaty is entered into by the President with the
concurrence of the Senate, which is not
13
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
45 | PART 1 C O N S T I 1 FULLTEXT
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. As consequence, an executive
15
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 dispensewith said election or
plebiscite; that the proceedings before the
Citizens' Assemblies did not constitute and may
not be considered as such plebiscite; that the
facts of record abundantly show that the
aforementioned Assemblies could not have been
held throughout the Philippines from January 10
to January 15, 1973; and that, in any event, the
proceedings in said Assemblies are null and void
as an alleged ratification of the new Constitution
proposed by the 1971 Constitutional Convention,
not only because of the circumstances under
46 | PART 1 C O N S T I 1 FULLTEXT
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, We rejected the theory of the
18
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, questioning Our
19
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 and Montenegro v.
20
Castañeda, insofar as it adhered to the former
21
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, the 22
political-question theory adopted in Mabanag v.
Lopez Vito. Hence, respondents herein urge
23
Us to reconsider the action thus taken by the
Court and to revert to and follow the views
expressed in Barcelon v. Baker and Mabanag v.
Lopez Vito. 24
The reasons adduced in support thereof are,
however, substantially the same as those given
in support of the political-question theory
advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this
Court and found by it to be legally unsound and
constitutionally untenable. As a consequence,
Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect
of a stare decisis, which gained added weight by
its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration
and other issues of similar character are
justiciable, not political, is plain and simple. One
of the principal bases of the non-justiciability of
so-called political questions is the principle of
separation of powers — characteristic of the
Presidential system of government — the
functions of which are classified or divided, by
reason of their nature, into three (3) categories,
namely: 1) those involving the making of laws,
which are allocated to the legislative department;
2) those concerned mainly with the enforcement
of such laws and of judicial decisions applying
and/or interpreting the same, which belong to
the executive department; and 3) those dealing
with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives
that are legally demandable and enforceable,
which are apportioned to courts of justice. Within
its own sphere — but only within such sphere —
each department is supreme and independent of
the others, and each is devoid of authority, not
only to encroach upon the powers or field of
action assigned to any of the other departments,
but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed,
measures taken or decisions made by the other
departments — provided that such acts,
measures or decisions are 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
47 | PART 1 C O N S T I 1 FULLTEXT
powers by the other departments. Hence, the that it is a matter which is to be
appointing power of the Executive, his pardoning exercised by the people in their
power, his veto power, his authority to call the primary political capacity, or that
Legislature or Congress to special sessions and it has been specifically
even to prescribe or limit the object or objects of delegated to some other
legislation that may be taken up in such department or particular officer
sessions, etc. Conversely, Congress or an of the government, with
agency or arm thereof — such as the discretionary power to act.
commission on Appointments — may approve or See State vs. Cunningham, 81
disapprove some appointments made by the Wis. 497, N.W. 724, 15 L.R.A.
President. It, also, has the power of 561; In re Gunn, 50 Kan. 155;
appropriation, to "define, prescribe, and 32 Pac. 470, 948, 19 L.R.A.
apportion the jurisdiction of the various courts," 519; Green vs. Mills, 69 Fed.
as well as that of impeachment. Upon the other 852, 16 C.C.A. 516, 30 L.R.A.
hand, under the judicial power vested by the 90; Fletcher vs. Tuttle 151 Ill.
Constitution, the "Supreme Court and ... such 41, 37 N.E. 683, 25 L.R.A. 143,
inferior courts as may be established by law," 42 Am. St. Rep. 220. Thus
may settle or decide with finality, not only the Legislature may in its
justiciable controversies between private discretion determine whether it
individuals or entities, but, also, disputes or will pass law or submit a
conflicts between a private individual or entity, proposed constitutional
on the one hand, and an officer or branch of the amendment to the people. The
government, on the other, or between two (2) courts have no judicial control
officers or branches of service, when the latter over such matters, not merely
officer or branch is charged with acting without because they involve political
jurisdiction or in excess thereof or in violation of questions, but because they are
law. And so, when a power vested in said officer matters which the people have
or branch of the government by the Constitution delegated to
is absolute or unqualified, the acts in the the Legislature. The Governor
exercise of such power are said to be political in may exercise the powers
nature, and, consequently, non-justiciable or delegated him, free from judicial
beyond judicial review. Otherwise, courts of control, so long as he observes
justice would be arrogating upon themselves a the laws act within the limits of
power conferred by the Constitution upon the power conferred.
another branch of the service to the exclusion of His discretionary acts cannot be
the others. Hence, in Tañada v. Cuenco, this 26
controllable, not primarily
Court quoted with approval from In re because they are of a politics
McConaughy, the following:
27
nature, but because the
Constitution and laws have
"At the threshold of the case we placed the particular matter
are met with the assertion that under his control. But every
the questions involved are officer under constitutional
political, and not judicial. If this government must act
is correct, the court has no accordingly to law and subject
jurisdiction as the certificate of its restrictions, and every
the state canvassing board departure therefrom or
would then be final, regardless disregard thereof must subject
of the actual vote upon the him to that restraining and
amendment. The question thus controlling power of the people,
raised is a fundamental one; but acting through the agency of the
it has been so often decided judiciary; for it must be
contrary to the view contended remembered that the people act
for by the Attorney General that through courts, as well as
it would seem to be finally through the executive or the
settled. Legislature. One department is
just as representative as the
other, and the judiciary is the
xxx xxx xxx
department which is charged
with the special duty of
"... What is generally meant, determining the limitations
when it is said that a question is which the law places upon all
political, and not judicial, is
48 | PART 1 C O N S T I 1 FULLTEXT
 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, it
28
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." In fact, this very Court —
29
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
organwhich 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 in support of his stand that the issue
31
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
49 | PART 1 C O N S T I 1 FULLTEXT
the people for their adoption or rejection. The
convention was not authorized by any law of the
existing government. The delegates to such
convention framed a new Constitution which was
submitted to the people. Upon the return of the
votes cast by them, the convention declared that
said Constitution had been adopted and ratified
by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported
by a large number of citizens of the state,
contested, however, the validity of said
proceedings. This notwithstanding, one Thomas
W. Dorr, who had been elected governor under
the new Constitution of the rebels, prepared to
assert authority by force of arms, and many
citizens assembled to support him. Thereupon,
the charter government passed an Act declaring
the state under Martial Law and adopted
measures to repel the threatened attack and
subdue the rebels. This was the state of affairs
when the defendants, who were in the military
service of the charter government and were to
arrest Luther, for engaging in the support of the
rebel government — which was never able to
exercise any authority in the state — broke into
his house.
Meanwhile, the charter government had taken
measures to call its own convention to revise the
existing form of government. Eventually, a new
constitution was drafted by a convention held
under the authority of the charter government,
and thereafter was adopted and ratified by the
people. "(T)he times and places at which the
votes were to be given, the persons who were to
receive and return them, and the qualifications of
the voters having all been previously authorized
and provided for by law passed by the charter
government," the latter formally surrendered all
of its powers to the new government,
established under its authority, in May 1843,
which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the
head of a military force, had made an
unsuccessful attempt to take possession of the
state arsenal in Providence, but he was
repulsed, and, after an "assemblage of some
hundreds of armed men under his command at
Chepatchet in the June following, which
dispersed upon approach of the troops of the old
government, no further effort was made to
establish" his government. "... until the
Constitution of 1843" — adopted under the
auspices of the charter government — "went into
operation, the charter government continued to
assert its authority and exercise its powers and
to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove
that the constitution of the rebels had been
ratified by the majority of the people, which the
Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took
the case for review to the Federal Supreme
Court which affirmed the action of the Circuit
Court, stating:
It is worthy of remark, however,
when we are referring to the
authority of State decisions, that
the trial of Thomas W. Dorr took
place after the constitution of
1843 went into operation. The
judges who decided that case
held their authority under that
constitution and it is admitted on
all hands that it was adopted by
the people of the State, and is
the lawful and established
government. It is the decision,
therefore, of a State court,
whose judicial authority to
decide upon the constitution and
laws of Rhode Island is not
questioned by either party to
this controversy, although the
government under which it
acted was framed and adopted
under the sanction and laws of
the charter government.
The point, then, raised here has
been already decided by the
courts of Rhode Island. The
question relates, altogether, to
the constitution and laws of that
State, and the well settled rule
in this court is, that the courts of
the United States adopt and
follow the decisions of the State
courts in questions which
concern merely the constitution
and laws of the State.
Upon what ground could the
Circuit Court of the United
States which tried this case
have departed from this rule,
and disregarded and overruled
the decisions of the courts of
Rhode Island? Undoubtedly the
courts of the United States have
certain powers under the
Constitution and laws of the
United States which do not
belong to the State courts.
But the power of determining
that a State government has
been lawfully established, which
50 | PART 1 C O N S T I 1 FULLTEXT
 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 otherthan 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, cited by respondents, involved
34
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, the same
35
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 —
51 | PART 1 C O N S T I 1 FULLTEXT
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 dutyof 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' 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
52 | PART 1 C O N S T I 1 FULLTEXT
the Constitution was a deception upon the twenty-one years of age or over
people since the President announced the and are able to read and write,
postponement of the January 15, 1973 plebiscite and who shall have resided in
to either February 19 or March 5, 1973." 38
the Philippines for one year and
in the municipality wherein they
The reasons adduced by the petitioners in L- propose to vote for at least six
36165 in favor of the negative view have already months preceding the election.
been set forth earlier in this opinion. Hence, it is The National Assembly shall
unnecessary to reproduce them here. So it is, extend the right of suffrage to
with respect to the positions taken in L-36165 by women, if in a plebiscite which
counsel for therein respondents Gil J. Puyat and shall be held for that purpose
Jose Roy — although more will be said later within two years after the
about them — and by the Solicitor General, on adoption of this Constitution, not
behalf of the other respondents in that case and less than three hundred
the respondents in the other cases. thousand women possessing
the necessary qualifications
1. What is the procedure prescribed by the 1935 shall vote affirmatively on the
Constitution for its amendment? question.

Under section 1 of Art. XV of said Constitution, Sections 1 and 2 of Art. X of the Constitution
ordain in part:
three (3) steps are essential, namely:

Section 1. There shall be

1. That the amendments to the Constitution be
an independent Commission on
proposed either by Congress or by a convention
Elections composed of a
called for that purpose, "by a vote of three-
Chairman and two other
fourths of all the Members of the Senate and the
Members to be appointed by the
House of Representatives voting separately,"
President with the consent of
but "in joint session assembled";
the Commission on
Appointments, who shall hold
2. That such amendments be "submitted to the office for a term of nine years
people for their ratification" at an "election"; and and may not be reappointed. ...

3. That such amendments be "approved by a xxx xxx xxx

majority of the votes cast" in said election.
Sec. 2. The Commission on
Compliance with the first requirement is virtually Elections shall
conceded, although the petitioners in L-36164 have exclusive charge of the
question the authority of the 1971 Constitutional enforcement and administration
Convention to incorporate certain provisions into of all laws relative to
the draft of the new or revised Constitution. The the conduct of elections and
main issue in these five (5) cases hinges, shall exercise all other functions
therefore, on whether or not the last two (2) which may be conferred upon it
requirements have been complied with. by law. It shall decide, save
those involving the right to
2. Has the contested draft of the new or revised vote, all administrative
Constitution been submitted to the people for questions, affecting elections,
their ratification conformably to Art. XV of the including the determination of
Constitution? the number and location of
polling places, and the
In this connection, other provisions of the 1935 appointment of election
Constitution concerning "elections" must, also, inspectors and of other election
be taken into account, namely, section I of Art. V officials. All law enforcement
and Art. X of said Constitution. The former agencies and instrumentalities
reads: of the Government, when so
required by the Commission,
Section 1. Suffrage may be shall act as its deputiesfor the
exercised by male citizens of purpose of insuring fee, orderly,
the Philippines not otherwise and honest elections. The
disqualified by law, who are decisions, orders, and rulings of

53 | PART 1 C O N S T I 1 FULLTEXT
 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 ... ." " Said
40
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. This accounts, in my opinion, for
42
the permissive language used in the first
sentence of said Art. V. Despite some debates
on the age qualification — amendment having
been proposed to reduce the same to 18 or 20,
which were rejected, and the residence
qualification, as well as the disqualifications to
the exercise of the right of suffrage — the
second recommendation limiting the right of
suffrage to those who could "read and write" was
— in the language of Dr. Jose M. Aruego, one of
the Delegates to said Convention — "readily
approved in the Convention without any
dissenting vote," although there was some
debate on whether the Fundamental Law should
specify the language or dialect that the voter
could read and write, which was decided in the
negative. 43
What is relevant to the issue before Us is the
fact that the constitutional provision under
consideration was meant to be and is
a grant or conferment of a right to persons
possessing the qualifications and none of the
disqualifications therein mentioned, which in
turn, constitute a limitation of or restriction to
said right, and cannot, accordingly, be
dispensed with, except by constitutional
amendment. Obviously, every such
constitutional grant or conferment of a right is
necessarily a negation of the authority of
Congress or of any other branch of the
Government to deny said right to the subject of
the grant — and, in this sense only, may the
same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the
Fundamental Law allows Congress or anybody
else to vest in those lacking the qualifications
and having the disqualifications mentioned in the
Constitution the right of suffrage.
At this juncture, it is noteworthy that the
committee on suffrage responsible for the
54 | PART 1 C O N S T I 1 FULLTEXT
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. In all of these legislative acts, the
44
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, granting the writs,
45
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, pursuant to
46
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, "(a)ll duly registered barrio assembly
47
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. Besides, it
48
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
55 | PART 1 C O N S T I 1 FULLTEXT
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, whose average term ranges
49
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, and of whether or not
50
they are disqualified under the provisions of said
Constitution and Code, or those of Republic
51
Act No. 3590, have participated and voted in
52
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., We held:
55
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
56 | PART 1 C O N S T I 1 FULLTEXT
ballots prepared and furnished by the
Government and secrecy in the voting, with the
advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for
the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence,
the viva voce voting in the Citizens' Assemblies
was and is null and void ab initio.
b. How should the plebiscite be held?
(COMELEC supervision indispensable; essential
requisites)
Just as essential as compliance with said Art. V
of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section
1 provides that "(t)here shall be
an independent Commission on Elections ... ."
The point to be stressed here is the term
"independent." Indeed, why was the term used?
In the absence of said constitutional provision as
to the independence of the Commission, would it
have been depends upon either Congress or the
Judiciary? The answer must be the negative,
because the functions of the Commission —
"enforcement and administration" of election
laws — are neither legislative nor judicial in
nature, and, hence, beyond the field allocated to
either Congress or courts of justice. Said
functions are by their nature
essentially executive, for which reason, the
Commission would be under the "control" of the
President, pursuant to section 10, paragraph (1)
of Art. VII of the Constitution, if Art. X thereof did
not explicitly declare that it (the Commission) is
an "independent" body. In other words, in
amending the original 1935 Constitution, by
inserting therein said Art. X, on the Commission
on Elections, the purpose was to make said
Commission independent principally of the Chief
Executive.
And the reason therefor is, also, obvious. Prior
to the creation of the Commission on Elections
as a constitutional organ, election laws in the
Philippines were enforced by the then
Department of the Interior, through its Executive
Bureau, one of the offices under the supervision
and control of said Department. The same —
like other departments of the Executive Branch
of the Government — was, in turn, under the
control of the Chief Executive, before the
adoption of the 1935 Constitution, and had been
— until the abolition of said Department,
sometime ago — under the control of the
President of the Philippines, since the effectivity
of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of
control over the Department of the Interior and
its Executive Bureau as to place the minority
party at such a great, if not decisive,
disadvantage, as to deprive it, in effect, of the
opportunity to defeat the political party in power,
and, hence, to enable the same to perpetuate
itself therein. To forestall this possibility, the
original 1935 Constitution was amended by the
establishment of the Commission on Elections
as a constitutional body independent primarily of
the President of the Philippines.
The independence of the Commission was
sought to be strengthened by the long term of
office of its members — nine (9) years, except
those first appointed — the longest under the
59
Constitution, second only to that of the Auditor
General ; by providing that they may not be
60
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 ; that "(n)o
61
pardon, parole, or suspension sentence for the
violation of any election law may be granted
without the favorable recommendation of the
Commission" ; and, that its chairman and
62
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." Thus, the framers of
63
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
57 | PART 1 C O N S T I 1 FULLTEXT
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. Moreover, said Act contains, inter alia,
64
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, involving the casting of many
65
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 — We need not, in
66
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
58 | PART 1 C O N S T I 1 FULLTEXT
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 — the Executive declared, inter alia, that
67
the collective views expressed in the Citizens'
Assemblies "shall be considered in the
formulation of national policies or programs and,
wherever practicable, shall be translated into
concrete and specific decision"; that such
Citizens' Assemblies "shall consider vital
national issues ... like the holding of the
plebiscite on the new Constitution ... and others
in the future, which shall serve as guide or basis
for action or decision by the national
government"; and that the Citizens' Assemblies
"shall conduct between January 10 and 15,
1973, a referendum on important national
issues, including those specified in paragraph 2
hereof, and submit the results thereof to the
Department of Local Governments and
Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86,
this Decree No. 86-A does not and cannot
exclude the exercise of the constitutional
supervisory power of the Commission on
Elections or its participation in the proceedings
in said Assemblies, if the same had been
intended to constitute the "election" or Plebiscite
required Art. V of the 1935 Constitution. The
provision of Decree No. 86-A directing the
immediate submission of the result thereof to the
Department of Local Governments Community
Development is not necessarily inconsistent
with, and must be subordinate to the
constitutional power of the Commission on
Elections to exercise its "exclusive authority over
the enforcement and administration of all laws to
the conduct of elections," if the proceedings in
the Assemblies would partake of the nature of
an "election" or plebiscite for the ratification or
rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was
further amended by Presidential Decree No. 86-
B, dated 1973, ordering "that important national
issues shall from time to time; be referred to the
Barangays (Citizens Assemblies) for resolution
in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial
referendum include the matter of ratification of
the Constitution by the 1971 Constitutional
Convention" and that "(t)he Secretary of the
Department of Local Governments and
Community Development shall insure the
implementation of this order." As in the case of
Presidential Decrees Nos. 86 and 86-A, the
foregoing directives do not necessarily exclude
exercise of the powers vested by the 1935
Constitution in the Commission on Elections,
even if the Executive had the authority to repeal
Art. X of our Fundamental Law — which he does
not possess. Copy of Presidential Decree No.
86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies
as were held took place without the intervention
of the Commission on Elections, and without
complying with the provisions of the Election
Code of 1971 or even of those of Presidential
Decree No. 73. What is more, they were held
under the supervision of the very officers and
agencies of the Executive Department sought to
be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said officers and
agencies of the 1935 Constitution would be
favored thereby, owing to the practical indefinite
extension of their respective terms of office in
consequence of section 9 of the Transitory
Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And
the procedure therein mostly followed is such
that there is no reasonable means of
checking the accuracy of the returns files by the
officers who conducted said plebiscites. This is
another patent violation of Art. of the
Constitution which can hardly be sanctioned.
And, since the provisions of this article form part
of the fundamental scheme set forth in the 1935
Constitution, as amended, to insure the "free,
orderly, and honest" expression of the 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?
59 | PART 1 C O N S T I 1 FULLTEXT
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
60 | PART 1 C O N S T I 1 FULLTEXT
Solicitor General was asked to submit, together
with his notes on his oral argument, a true copy
of aforementioned report of Mr. Cruz to the
President and of "(p)roclamation, decree,
instruction, order, regulation or circular, if any,
creating or directing or authorizing creation,
establishment or organization" of said municipal,
provincial and national associations, but neither
a copy of alleged report to the President, nor a
copy of any "(p)roclamation, decree, instruction,
order, regulation or circular," has been submitted
to this Court. In the absence of said report,
"(p)roclamation, decree, instruction," etc.,
Proclamation No. 1102 is devoid of
any factual and legalfoundation. Hence, the
conclusion set forth in the dispositive portion of
said Proclamation No. 1102, to the effect that
the proposed new or revised Constitution had
been ratified by majority of the votes cast by the
people, can not possibly have any legal effect or
value.
The theory that said proclamation is "conclusive
upon Court is clearly untenable. If it were, acts of
the Executive and those of Congress could not
possibly be annulled or invalidated by courts of
justice. Yet, such is not the case. In fact, even a
resolution of Congress declaring that a given
person has been elected President or Vice-
President of the Philippines as provided in the
Constitution, is not conclusive upon the courts.
69
It is no more than prima facie evidence of what
is attested to by said resolution. If assailed
70
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. If
71
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 is squarely in
72
point. "As the Constitution stood from the
organization of the state" — of Minnessota —
"all taxes were required to be raised under the
system known as the 'general property tax.'
Dissatisfaction with the results of this method
and the development of more scientific and
satisfactory methods of raising revenue induced
the Legislature to submit to the people an
amendment to the Constitution which provided
merely that taxes shall be uniform upon the
same class of subjects. This proposed
amendment was submitted at the general
election held in November, 1906, and in due
time it was certified by the state canvassing
board and proclaimed by the Governor as
having been legally adopted. Acting upon the
assumption that the amendment had become a
part of the Constitution, the Legislature enacted
statutes providing for a State Tax Commission
and a mortgage registry tax, and the latter
statute, upon the same theory, was held
constitutional" by said Court. "The district court
found that the amendment had no in fact been
adopted, and on this appeal" the Supreme Court
was "required to determine the correctness of
that conclusion."
Referring to the effect of the certification of the
State Board of Canvassers created by the
Legislature and of theproclamation made by the
Governor based thereon, the Court held: "It will
be noted that this board does no more than
tabulate the reports received from the various
county board and add up and certify the results.
State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the
decisions of election officers, and canvassing
boards are not conclusive and that the final
decision must rest with the courts, unless the
law declares that the decisions of the board shall
be final" — and there is no such law in the cases
at bar. "... The correctness of the conclusion of
the state board rests upon the correctness of the
returns made by the county boards and it
is inconceivable that it was intended that this
statement of result should be final and
conclusive regardless of the actual facts. The
proclamation of the Governor adds nothing in
the way of conclusiveness to the legal effect of
the action of the canvassing board. Its purpose
is to formally notify the people of the state of the
result of the voting as found by the canvassing
board. James on Const. Conv. (4th Ed.) sec.
523."
In Bott v. Wartz, the Court reviewed the
73
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
61 | PART 1 C O N S T I 1 FULLTEXT
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
62 | PART 1 C O N S T I 1 FULLTEXT
 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 — the President announced
76
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
63 | PART 1 C O N S T I 1 FULLTEXT
another plebiscite be held, even if the majority of
the answers to question No. 8 were in the
affirmative. In either case, not more
than one plebiscite could be held for the
ratification or rejection of the proposed
Constitution. In short, the insertion of said two
(2) questions — apart from the other questions
adverted to above — indicates strongly that the
proceedings therein did not partake of the nature
of a plebiscite or election for the ratification or
rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare
that the proposed Constitution has been
approved or adopted by the people in the
citizens' assemblies all over the Philippines,
when it is, to my mind, a matter of judicial
knowledge that there have been no such
citizens' assemblies in many parts of Manila and
suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B.
Pascual of Bataan, dated January 15, 1973, to
the Chief Executive, the former reported:
... This report includes a
resumee (sic) of the activities
we undertook in effecting
the referendum on the eleven
questions you wanted our
people consulted on and the
Summary of Results thereof for
each municipality and for the
whole province.
xxx xxx xxx
... Our initial plans and
preparations, however, dealt
only on the original five
questions. Consequently,
when we received an instruction
on January 10 to change the
questions, we urgently
suspended all scheduled
Citizens Assembly meetings on
that day and called all Mayors,
Chiefs of Offices and other
government officials to another
conference to discuss with them
the new set of guidelines and
materials to be used.
On January 11, ... another
instruction from the top was
received to include the original
five questions among those to
be discussed and asked in the
Citizens' Assembly meetings.
With this latest order, we again
had to make modifications in our
instructions to all those
managing and supervising the
holding of the Citizens'
Assembly meetings throughout
the province. ... Aside from the
coordinators we had from the
Office of the Governor, the
splendid cooperation and
support extended by almost all
government officials and
employees in the province,
particularly of the Department of
Education, PC and PACD
personnel, provided us with
enough hands to trouble shoot
and implement sudden changes
in the instructions anytime and
anywhere needed. ...
... As to our people, in general,
their enthusiastic participation
showed their preference and
readiness to accept this new
method of government to
people consultation in
shaping up government policies.
Thus, as late as January 10, 1973, the Bataan
officials had to suspend "all scheduled Citizens'
Assembly meetings ..." and call all available
officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then,
"on January 11 ... another instruction from the
top was received to include the original five
questions among those be discussed and asked
in the Citizens' Assembly meetings. With this
latest order, we again had to make modifications
in our instructions to all those managing and
supervising holding of the Citizens' Assembly
meetings throughout province. ... As to our
people, in general, their enthusiastic
participation showed their preference and
readiness to accept the new method of
government to people consultation in shaping
up government policies."
This communication manifestly shows: 1) that,
as late a January 11, 1973, the Bataan officials
had still to discuss — not put into operation —
means and ways to carry out the changing
instructions from the top on how to organize the
citizens' assemblies, what to do therein and
even what questions or topics to propound or
touch in said assemblies; 2) that the assemblies
would involve no more than consultations or
dialogues between people and government —
not decisions be made by the people; and 3) that
said consultations were aimed only at "shaping
up government policies" and, hence could not,
and did not, partake of the nature of a plebiscite
for the ratification or rejection of a proposed
64 | PART 1 C O N S T I 1 FULLTEXT
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, attention was called to the
77
"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, that "a court is not at liberty
78
to shut its eyes to an obvious mistake, when
the validity of the law depends upon the truth of
what is declared."
In the light of the foregoing, I cannot see how the
question under consideration can be answered
or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed
Constitution?
It is urged that the present Government of the
Philippines is now and has been run, since
January 17, 1971, under the Constitution drafted
by the 1971 Constitutional Convention; that the
political department of the Government has
recognized said revised Constitution; that our
foreign relations are being conducted under
such new or revised Constitution; that the
Legislative Department has recognized the
same; and that the people, in general, have, by
their acts or omissions, indicated their conformity
thereto.
As regards the so-called political organs of the
Government, gather that respondents refer
mainly to the offices under the Executive
Department. In a sense, the latter performs
some functions which, from a constitutional
viewpoint, are politics in nature, such as in
recognizing a new state or government, in
accepting diplomatic representatives accredited
to our Government, and even in devising
administrative means and ways to better carry
into effect. Acts of Congress which define the
goals or objectives thereof, but are either
imprecise or silent on the particular measures to
be resorted to in order to achieve the said goals
or delegate the power to do so, expressly or
impliedly, to the Executive. This,
notwithstanding, the political organ of a
government that purports to be republican is
essentially the Congress or Legislative
Department. Whatever may be the functions
allocated to the Executive Department —
specially under a written, rigid Constitution with a
republican system of Government like ours —
the role of that Department is inherently,
basically and fundamentally executive in nature
— to "take care that the laws be faithfully
executed," in the language of our 1935
Constitution. 79
Consequently, I am not prepared to concede
that the acts the officers and offices of the
Executive Department, in line with Proclamation
No. 1102, connote a recognition thereof o an
acquiescence thereto. Whether they recognized
the proposed Constitution or acquiesce thereto
or not is something that cannot legally, much
less necessarily or even normally, be deduced
from their acts in accordance therewith, because
the are bound to obey and act in conformity with
the orders of the President, under whose
"control" they are, pursuant to the 1935
Constitution. They have absolutely no other
choice, specially in view of Proclamation No.
1081 placing the Philippines under Martial Law.
Besides, by virtue of the very decrees, orders
and instructions issued by the President
thereafter, he had assumed all powers of
Government — although some question his
authority to do so — and, consequently, there is
hardly anything he has done since the issuance
of Proclamation No. 1102, on January 17, 1973
— declaring that the Constitution proposed by
the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the
people — that he could not do under the
authority he claimed to have under Martial Law,
since September 21, 1972, except the power of
supervision over inferior courts and its
personnel, which said proposed Constitution
would place under the Supreme Court, and
which the President has not ostensibly
exercised, except as to some minor routine
matters, which the Department of Justice has
continued to handle, this Court having preferred
to maintain the status quo in connection
therewith pending final determination of these
65 | PART 1 C O N S T I 1 FULLTEXT
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 — cited by respondents herein
80
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
operation ...";
4. The "judiciary in taking the oath prescribed
thereby to support it and by enforcing its
provisions ..."; and
5. The "people in their primary capacity by
peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of
thousands throughout the State, and by voting,
under its provisions, at a general election for
their representatives in the Congress of the
United States."
Note that the New Constitution of Virginia,
drafted by a convention whose members were
elected directly by the people, was not submitted
to the people for ratification or rejection thereof.
But, it was recognized, not by the convention
itself, but by other sectors of the Government,
namely, the Governor; the Legislature — not
merely by individual acts of its members, but
by formal joint resolution of its two (2) chambers;
by the judiciary; and by the people, in the
various ways specified above. What is more,
there was no martial law. In the present
cases, none of the foregoing acts of
acquiescence was present. Worse still, there is
martial law, the strict enforcement of which was
announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the
effectivity of the contested amendment was not
contested judicially until about one (1) year after
the amendment had been put into operation
in all branches of the Government, and complied
with by the people who participated in the
elections held pursuant to the provisions of the
new Constitution. In the cases under
consideration, the legality of Presidential Decree
No. 73 calling a plebiscite to be held on January
15, 1973, was impugned as early as December
7, 1972, or five (5) weeks before the scheduled
plebiscite, whereas the validity of Proclamation
No. 1102 declaring on January 17, 1973, that
the proposed Constitution had been ratified —
despite General Order No. 20, issued on
January 7, 1972, formally and officially
suspending the plebiscite until further notice —
was impugned as early as January 20, 1973,
when L-36142 was filed, or three (3) days after
the issuance of Proclamation No. 1102.
It is further alleged that a majority of the
members of our House of Representatives and
Senate have acquiesced in the new or revised
Constitution, by filing written statements opting
to serve in the Ad Interim Assembly established
in the Transitory Provisions of said Constitution.
Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies
under the government, are invalid as acts of said
legislature or bodies, unless its members have
performed said acts in session duly assembled,
or unless the law provides otherwise, and there
is no such law in the Philippines. This is a well-
established principle of Administrative Law and
of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure
therefrom. 81
Indeed, if the members of Congress were
generally agreeable to the proposed
Constitution, why did it become necessary to
padlock its premises to prevent its meeting in
session on January 22, 1973, and thereafter as
provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent
on discharging their functions under said
Constitution, could have met in any other place,
66 | PART 1 C O N S T I 1 FULLTEXT
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, likewise, headlined, on its
82
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
connotespower of the gun, meant coercion by
the military,
and compulsion and intimidation." The failure
83
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
67 | PART 1 C O N S T I 1 FULLTEXT
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, the Highest Court of the United
84
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.
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." When the petitions at bar were filed, the
86
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
68 | PART 1 C O N S T I 1 FULLTEXT
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
69 | PART 1 C O N S T I 1 FULLTEXT
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
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, are relevant and unavoidable."
90 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:
70 | PART 1 C O N S T I 1 FULLTEXT
 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
71 | PART 1 C O N S T I 1 FULLTEXT
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 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
72 | PART 1 C O N S T I 1 FULLTEXT
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 twoLegislatures 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
73 | PART 1 C O N S T I 1 FULLTEXT
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,
74 | PART 1 C O N S T I 1 FULLTEXT
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 been drawn therefrom, and that the
amendment in question was legally submitted
and adopted.
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;

"The recent case of Rice v. Palmer, 78 Ark. 432,

NOW, THEREFORE, I, FERDINAND E.
96 S.W. 396, presented the identical question
MARCOS, President of the Philippines, by virtue
which we have under consideration. In reference
of the powers in me vested by the Constitution,
to the contention that the Constitution intended
do hereby order that important national issues
to delegate to the Speaker of the House of
shall from time to time be referred to the
Representatives the power to determine whether Barangays (Citizens Assemblies) for resolution
an amendment had been adopted, and that the
in accordance with Presidential Decree No. 86-A
question was political, and not judicial, the court
dated January 5, 1973 an that the initial
observed: "The argument has often been made
referendum shall include the matter of ratification
in similar cases to the courts, and it is found in
of the Constitution proposed by the 1971
many dissenting opinions; but, with probably Constitutional Convention.
a few exceptions, it is not found in
any prevailing opinion."
The Secretary of the Department of Local
Government and Community Development shall
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25
insure the implementation of this Order.
L.R.A. 560, it was held that the constitutional
requirement of publication of a proposed
constitutional provision for three months prior to Done in the City of Manila, this 7th day of
the election at which it is to be submitted to the January in the year of Our Lord, nineteen
people is mandatory and that noncompliance hundred and seventy-three.
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

75 | PART 1 C O N S T I 1 FULLTEXT

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 faciecase 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 Aat which the
amendments submitted to R the people for their
ratification." At the time Constitution
C was
approved by the Constitutional
O Convention on
February 8, 1935, and ratified
S 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 andplebiscites 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.
76 | PART 1 C O N S T I 1 FULLTEXT
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
aplebiscite 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
77 | PART 1 C O N S T I 1 FULLTEXT
to express their views on important national (3) Do you want a plebiscite to
issues." The Assemblies "shall consist of all be called to ratify the new
persons who are residents of the barrio, district Constitution?
or ward for at least six months, fifteen years of
age or over, citizens of the Philippines and who (4) Do you want the elections to
are registered in the lists of Citizen Assembly be held in November, 1973
members kept by the barrio, district or ward accordance with the provisions
secretary." By Presidential Decree No. 86-A, of the 1935 Constitution?
dated January 5, 1973, the Assemblies were
convened for a referendum between January 10
(5) If the elections would not be
and 15, to "consider vital national issues now
held, when do you want the next
confronting the country, like the holding of the
elections to be called?
plebiscite on the new Constitution, the
continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding (6) Do you want martial law to
of elections in November 1973." continue? [Bulletin Today,
January 11, 1973; emphasis
supplied].
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 Appended to the six additional questions above
follows: "How soon would you like plebiscite on quoted were the suggested answers, thus:
the new Constitution to be held?" It should be
noted in this connection that the President had COMMENTS ON
previously announced that he had ordered the
postponement of plebiscite which he had called QUESTION No.
for January 15, 1973 (Presidential Decree No. 1
73) for the ratification of the Constitution, and
that he was considering two new dates for the In order to
purpose — February 19 or March 5; that he had broaden the
ordered that the registration of voters (pursuant base of citizens'
to Decree No. 73) be extended to accommodate participation in
new voters; and that copies of the new government.
Constitution would be distributed in eight dialects
the people. (Bulletin Today, December 24,
QUESTION No.
1972.)
2
On January 10, 1973 it was reported that one
But we do not
more question would be added to the original
want the Ad
four which were to be submitted to the Citizens
Interim
Assemblies. The question concerning plebiscite
Assembly to be
was reworded as follows: "Do you like the
convoked. Or if
plebiscite to be held later?" The implication, it
it is to be
may likewise be noted, was that the Assemblies
convened at all,
should express their views as to the plebiscite
it should not be
should be held, not as to whether or not it should
done so until
be held at all.
after at least
seven (7) years
The next day, January 11, it was reported that from the
six additional questions would be submitted, approval of the
namely: New
Constitution by
(1) Do you approve of the the Citizens
citizens assemblies as the base Assemblies.
of popular government to decide
issues of national interest? QUESTION No.
3
(2) Do you approve of the new
Constitution? If the Citizens
Assemblies
approve of the
78 | PART 1 C O N S T I 1 FULLTEXT
New be strong and
Constitution, firm so that he
then the new can accomplish
Constitution all his reform
should be program and
deemed ratified. establish
normalcy in the
The vote of the country. If all
Citizens other measures
Assemblies fail, we want
should already President
be considered Marcos to
the plebiscite on declare a
the New revolutionary
Constitution. government
along the lines
of the new
QUESTION No.
Constitution
4
without the ad
interim
We are sick and Assembly.
tired of too
frequent
So it was that on January 11, 1973, the second
elections. We
day of the purported referendum, the suggestion
are fed up with
politics, of so was broached, for the first time, that the
plebiscite should be done away with and a
many debates
favorable vote by the Assemblies deemed
and so much
equivalent ratification. This was done, not in the
expenses.
questionnaire itself, but in the suggested answer
to question No. 3. Strangely, however, it was not
QUESTION No. similarly suggested that an unfavorable vote be
5 considered as rejection.

Probably a There should be no serious dispute as to the fact

period of at that the manner in which the voting was
least seven (7) conducted in the Citizen Assemblies, assuming
years that such voting was held, was not within the
moratorium on intendment of Article XV, Section 1, of the 1935
elections will be Constitution nor in accordance with the Election
enough for Code of 1971. The referendum can by no means
stability to be be considered as the plebiscite contemplated in
established in Section 2 of said Code and in Article XVII,
the country, for Section 16, of the draft Constitution itself, or as
reforms to take the election intended by Congress when it
root and passed Resolution No. 2 on March 16, 1967
normalcy to calling a Convention for the revision of the 1935
return. Constitution. The Citizens Assemblies were not
limited to qualified, let alone registered voters,
QUESTION No. but included all citizens from the age of fifteen,
6 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
We want 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.
President 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
Marcos to 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.
continue with
Martial Law. We
want him to It has been suggested that since according to
exercise his Proclamation No. 1102 the overwhelming
powers with majority of all the members of the Citizens
more authority. Assemblies had voted for the adoption of the
We want him to proposed Constitution there was a substantial
79 | PART 1 C O N S T I 1 FULLTEXT
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 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
80 | PART 1 C O N S T I 1 FULLTEXT
functions under it instead of under the 1935 of the Constitution?" (4) President Marcos, in
Constitution, is political and therefore non- proclaiming that the Constitution had been
judicial in nature. Under such a postulate what ratified, stated as follows: "(S)ince the
the people did in the Citizen Assemblies should referendum results show that more than ninety-
be taken as an exercise of the ultimate five (95) per cent of the members of the
sovereign power. If they had risen up in arms Barangays (Citizens Assemblies) are in favor of
and by force deposed the then existing the new Constitution, the Katipunan ng mga
government and set up a new government in its Barangay has strongly recommended that the
place, there could not be the least doubt that new Constitution should already be
their act would be political and not subject to deemed ratified by the Filipino people." (5)
judicial review but only to the judgment of the There was not enough time for the Citizens
same body politic act, in the context just set Assemblies to really familiarize themselves with
forth, is based on realities. If a new government the Constitution, much less with the many other
gains authority and dominance through force, it subjects that were submitted to them. In fact the
can be effectively challenged only by a stronger plebiscite planned for January 15, 1973 under
force; judicial dictum can prevail against it. We Presidential Decree No. 73 had been postponed
do not see that situation would be any different, to an indefinite date, the reasons for the
as far as the doctrine of judicial review is postponement being, as attributed to the
concerned, if no force had been resorted to and President in the newspapers, that "there was
the people, in defiance of the existing little time to campaign for or against ratification"
Constitution but peacefully because of the (Daily Express, Dec. 22, 1972); that he would
absence of any appreciable opposition, ordained base his decision (as to the date, of the
a new Constitution and succeeded in having the plebiscite) on the compliance by the
government operate under it. Against such a Commission (on Elections) on the publication
reality there can be no adequate judicial relief; requirement of the new Charter and on the
and so courts forbear to take cognizance of the position taken by national leaders" (Daily
question but leave it to be decided through Express, Dec. 23, 1972); and that "the
political means. postponement would give us more time to
debate on the merits of the Charter." (Bulletin
The logic of the political-question doctrine is Today, Dec. 24, 1972.)
illustrated in statement of the U.S. Supreme
Court in a case * relied upon, curiously enough, by the Solicitor General, who disagrees The circumstances above enumerated lead us to
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 the conclusion that the Citizens Assemblies
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
could not have understood the referendum to be
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
for the ratification of the Constitution, but only for
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 the expression of their views on a consultative
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. basis. Indeed, if the expression of those views
had been intended as an act of ratification (or of
It should be noted that the above statement from rejection as a logical corollary) — there would
Luther vs. Borden would be applicable in the have been no need for the Katipunan ng mga
cases at bar only on the premise that the Barangay to recommend that the Constitution
ratification of the Constitution was a should already be deemed ratified, for
revolutionary act and that the government now recommendation imports recognition of some
functioning it is the product of such revolution. higher authority in whom the final decision rests.
However, we are not prepared to agree that the
premise is justified. But then the President, pursuant to such
recommendation, did proclaim that the
In the first, place, with specific reference to the Constitution had been ratified and had come into
questioned ratification, several significant effect. The more relevant consideration,
circumstances may be noted. (1) The Citizens therefore, as far as we can see, should be as to
Assemblies were created, according to what the President had in mind in convening the
Presidential Decree No. 86, "to broaden the Citizens Assemblies, submitting the Constitution
base of citizen participation in the democratic to them and proclaiming that the favorable
process and to afford ample opportunities for the expression of their views was an act of
citizenry to express their views on important ratification. In this respect subjective factors,
national issues." (2) The President announced, which defy judicial analysis and adjudication, are
according to the Daily Express of January 2, necessarily involved.
1973, that "the referendum will be in the nature
of a loose consultation with the people." (3) The In positing the problem within an identifiable
question, as submitted to them on the particular frame of reference we find no need to consider
point at issue here, was "Do you a approve whether or not the regime established by
81 | PART 1 C O N S T I 1 FULLTEXT
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."
82 | PART 1 C O N S T I 1 FULLTEXT
The message seems clear: rather than return to I assure you that I am utilizing
such status quo, he would heed the this power vested in me by the
recommendation of the Citizens' Assemblies to Constitution to save the
establish a revolutionary government, because Republic and reform our
that would be the only other way to carry out the society...
reforms he had envisioned and initiated —
reforms which, in all fairness and honesty, must I have had to use
be given credit for the improved quality of life in this constitutional power in order
its many aspects, except only in the field of civil that we may not completely lose
liberties. the civil rights and freedom
which we cherish...
If there is any significance, both explicit and
implicit, and certainly unmistakable, in the ... We are against the wall. We
foregoing pronouncements, it is that the step must now defend the
taken in connection with the ratification of the Republic with the stronger
Constitution was meant to be irreversible, and powers of the Constitution.
that nothing anyone could say would make the
least difference. And if this is a correct and
(Vital Documents, pp. 1-12;
accurate assessment of the situation, then we emphasis supplied).
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 In the report of an interview granted by the
dominance, the matter lies beyond the power of President to the Newsweek Magazine (published
judicial review. in the issue of January 29, 1973), the following
appears:
On the other hand, by avowals no less
significant if not so emphatic in terms, President xxx xxx xxx
Marcos has professed fealty to the Constitution.
In "Today's Revolution: Democracy" he says: Q. Now that you
have gotten off
I believe, therefore, in the the
necessity of Revolution as an constitutional
instrument of individual and track, won't you
social change ... but that in a be in serious
democratic society, revolution is trouble if you
of necessity, constitutional, run into critical
peaceful, and legal. problems with
your programs?
In his TV address of September 23, 1972,
President Marcos told the nation: R. I have never
gotten off the
constitutional
I have proclaimed martial law in
track.
accordance with the
Everything I am
powers vested in the President
doing is in
by the Constitution of the
accordance with
Philippines.
the 1935
Constitution.
xxx xxx xxx The only thing
is that instead
I repeat, this is not a military of 18-year-olds
takeover of civil government voting, we have
functions. The Government of allowed 15-
the Republic of the Philippines year-olds the
which was established by our right to vote.
people in 1946 continues. But the 15-year-
olds of today
xxx xxx xxx are high-school
students, if not
graduates, and
they are better
83 | PART 1 C O N S T I 1 FULLTEXT
 informed than him, demand that the action he took pursuant
my thereto be final and irrevocable, then judicial
contemporaries review is out of the question.
at that age. On
the matter of In articulating our view that the procedure of
whether it is ratification that was followed was not in
constitutional to accordance with the 1935 Constitution and
proclaim martial related statutes, we have discharged our sworn
law, it is duty as we conceive it to be. The President
constitutional should now perhaps decide, if he has not
because the already decided, whether adherence to such
Constitution procedure is weighty enough a consideration, if
provides for it in only to dispel any cloud of doubt that may now
the event of and in the future shroud the nation's Charter.
invasion,
insurrection,
In the deliberations of this Court one of the
rebellion or
issues formulated for resolution is whether or not
immediate
the new Constitution, since its submission to the
danger thereof.
Citizens Assemblies, has found acceptance
We may quarrel among the people, such issue being related to
about whether the political question theory propounded by the
what we have
respondents. We have not tarried on the point at
gone through is
all since we find no reliable basis on which to
sufficient cause
form a judgment. Under a regime of martial law,
to proclaim with the free expression of opinions through the
martial law but usual media vehicles restricted, we have no
at the very least
means of knowing, to the point of judicial
there is a
certainty, whether the people have accepted the
danger of
Constitution. In any event, we do not find the
rebellion
issue decisive insofar as our vote in these cases
because so is concerned. To interpret the Constitution —
many of our that is judicial. That the Constitution should be
soldiers have
deemed in effect because of popular
been killed. You
acquiescence — that is political, and therefore
must remember
beyond the domain of judicial review.
this (martial law
provision) was
lifted from the We therefore vote not to give due course to the
American instant petitions.
legislation that
was the BARREDO, J., concurring:
fundamental
law of our As far as I am concerned, I regard the present
country. petitions as no more than mere reiterations of
the Supplemental Petitions filed by Counsel
xxx xxx xxx Lorenzo M. Tañada on January 15, 1973 in the
so called Plebiscite Cases decided by this Court
In the light of this seeming ambivalence, the on January 22, 1978. Of course, there are
choice of what course of action to pursue amplifications of some of the grounds previously
belongs to the President. We have earlier made alleged and in the course of the unprecedented
reference to subjective factors on which this five-day hearing that was held from February 12
Court, to our mind, is in no position to pass to 16 last, more extensive and illuminating
judgment. Among them is the President's own arguments were heard by Us, but, in my
assessment of the will of the people as estimation, and with due recognition of the
expressed through the Citizens Assemblies and sincerety, brilliance and eloquence of counsels,
of the importance of the 1973 Constitution to the nothing more cogent and compelling than what
successful implementation of the social and had already been previously presented by
economic reforms he has started or envisioned. Counsel Tañada is before Us now. Accordingly, I
If he should decide that there is no turning back, cannot see any reason why I should change the
that what the people recommended through the position I took in regard to the earlier cases. I
Citizens Assemblies, as they were reported to reiterate, therefore, the vote I cast when these

84 | PART 1 C O N S T I 1 FULLTEXT
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 contained provisions more or less similar to the
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
plebiscite laws passed by Congress relative to
the past plebiscites held in connection with
previous proposed amendments.
85 | PART 1 C O N S T I 1 FULLTEXT
In connection with the plebiscite thus people on important national
contemplated, General Order No. 17 was issued issues;
ordering and enjoining the authorities to allow
and encourage public and free discussions on WHEREAS, such barangays
proposed constitution. Not only this, (citizens assemblies) desire that
subsequently, under date of December 17, they be given legal status and
1972, the President ordered the suspension the due recognition as constituting
effects of martial law and lifted the suspension of the genuine, legitimate and valid
privilege of the writ of habeas corpus insofar as expression of the popular will;
activities connected with the ratification of the and
draft constitution were concerned. These two
orders were not, however, to last very long. On
WHEREAS, the people would
January 7, 1973, the President, invoking
like the citizens assemblies to
information related to him that the area of public conduct immediately a
debate and discussion had opened by his referendum on certain specified
previous orders was being taken advantage of
questions such as the
by subversive elements to defeat the purposes
ratification of the new
for which they were issued and to foment public
Constitution, continuance of
confusion, withdrew said orders and enjoined full
martial law, the convening of
and stricter implementation of martial law. Congress on January 22, 1973,
and the elections in November
In the meantime, the President had issued on 1973 pursuant to the 1935
December 3, 1972 Presidential Decree No. 86 Constitution.
creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express NOW, THEREFORE, I,
their views on important national issues" and
FERDINAND E. MARCOS,
one of the questions presented to said
President of the Philippines, by
assemblies was: "Do you like the plebiscite on
virtue of the powers vested in
the proposed Constitution to be held later" So,
me by the Constitution as
the same order of January 7, 1973, General Commander-in-Chief of all
Order No. 20, the President ordered, "that the Armed Forces of the
plebiscite scheduled to be held January 15,
Philippines, do hereby declare
1973, be postponed until further notice".
as part of the law of the land the
following:
In the meanwhile also, on January 5, 1973, the
President issued Presidential Decree, No. 86-A 1. The present barangays
providing as follows:
(citizens assemblies) are
created under Presidential
PRESIDENTIAL DECREE NO. 86-A Decree No. 86 dated December
31, 1972, shall constitute the
STRENGTHENING AND DEFINING THE ROLE base for citizen participation in
OF governmental affairs and their
BARANGAYS (CITIZENS ASSEMBLIES) collective views shall be
considered in the formulation of
WHEREAS, on the basis of national policies or programs
preliminary and initial reports and, wherever practicable, shall
from the field as gathered from be translated into concrete and
barangays (citizens assemblies) specific decision;
that have so far been
established, the people would 2. Such barangays (citizens
like to decide for themselves assemblies) shall consider vital
questions or issues, both local national issues now confronting
and national, affecting their day- the country, like the holding of
to-day lives and their future; the plebiscite on the new
Constitution, the continuation of
WHEREAS, the barangays martial rule, the convening of
(citizens assemblies) would like Congress on January 22, 1973,
themselves to be the vehicle for and the holding of elections in
expressing the views of the November 1973, and others in
the future, which shall serve as

86 | PART 1 C O N S T I 1 FULLTEXT
 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?
87 | PART 1 C O N S T I 1 FULLTEXT
 (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 the Weather Bureau
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;
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.
88 | PART 1 C O N S T I 1 FULLTEXT
 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
89 | PART 1 C O N S T I
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
1 FULLTEXT
 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. Their common target
1
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 agreement or law, the Court would
2
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
90 | PART 1 C O N S T I 1 FULLTEXT
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,
91 | PART 1 C O N S T I 1 FULLTEXT
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
92 | PART 1 C O N S T I 1 FULLTEXT
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
93 | PART 1 C O N S T I 1 FULLTEXT
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.
94 | PART 1 C O N S T I 1 FULLTEXT
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
95 | PART 1 C O N S T I 1 FULLTEXT
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.
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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
97 | PART 1 C O N S T I 1 FULLTEXT
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
98 | PART 1 C O N S T I 1 FULLTEXT
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 crudely, whether in legal form or otherwise,
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
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.
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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).
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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
101 | PART 1 C O N S T I 1 FULLTEXT
 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).
102 | PART 1 C O N S T I 1 FULLTEXT
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
103 | PART 1 C O N S T I 1 FULLTEXT
 into effect as soon as nine No case identical in its facts with
states ratified. The convention the case now under
method had the further consideration has been called to
advantage that judges, our attention, and we have
ministers, and others ineligible found none. We think that the
to state legislatures, could be principle which we apply in the
elected to a convention. The instant case was very clearly
nine-state provision was, of applied in the creation of the
course, mildly revolutionary. But constitution of the United States.
the Congress of the The convention created by a
Confederation, still sitting in resolution of Congress had
New York to carry on federal authority to do one thing, and
government until relieved, one only, to wit, amend the
formally submitted the new articles of confederation. This
constitution to the states and they did not do, but submitted to
politely faded out before the first the sovereign power, the
presidential inauguration. (The people, a new constitution. In
Oxford History of the Am. this manner was the constitution
People, by Samuel Eliot of the United States submitted
Morison, 1965 ed., p. 312). to the people and it became
operative as the organic law of
And so the American Constitution was ratified by this nation when it had been
nine (9) states on June 21, 1788 and by the last properly adopted by the people.
four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S., 27. — by the state Pomeroy's Constitutional Law,
conventions and not by all thirteen (13) state p. 55, discussing the convention
legislatures as required by Article XIII of the that formulated the constitution
Articles of Confederation and Perpetual Union of the United States, has this to
aforequoted — and in spite of the fact that the say: "The convention proceeded
Federal Constitution as originally adopted to do, and did accomplish, what
suffers from two basic infirmities, namely, the they were not authorized to do
absence of a bill of Rights and of a provision by a resolution of Congress that
affirming the power of judicial review. called them together. That
resolution plainly contemplated
The liberties of the American people were amendments to the articles of
guaranteed by subsequent amendments to the confederation, to be submitted
Federal Constitution. The doctrine of judicial to and passed by the Congress,
review has become part of American and afterwards ratified by all the
constitutional law only by virtue of a judicial State legislatures, in the manner
pronouncement by Chief Justice Marshall in the pointed out by the existing
case of Marbury vs. Madison (1803, 1 Cranch organic law. But the convention
137). soon became convinced that
any amendments were
powerless to effect a cure; that
Until this date, no challenge has been launched
the disease was too deeply
against the validity of the ratification of the
seated to be reached such
American Constitution, nor against the
tentative means. They saw that
legitimacy of the government organized and
the system they were called to
functioning thereunder.
improve must be totally
abandoned, and that the
In the 1946 case of Wheeler vs. Board of national idea must be re-
Trustees (37 SE 2nd 322, 326-330), which established at the center of their
enunciated the principle that the validity of a new political society. It was objected
or revised Constitution does not depend on the by some members, that they
method of its submission or ratification by the had no power, no authority, to
people, but on the fact or fiat or approval or construct a new government.
adoption or acquiescence by the people which They had no authority, if their
fact of ratification or adoption or acquiescence is decisions were to be final; and
all that is essential, the Court cited precisely the no authority whatsoever, under
case of the irregular revision and ratification by the articles of confederation, to
state conventions of the Federal Constitution, adopt the course they did. But
thus:
104 | PART 1 C O N S T I 1 FULLTEXT
 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
105 | PART 1 C O N S T I 1 FULLTEXT
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
106 | PART 1 C O N S T I 1 FULLTEXT
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
107 | PART 1 C O N S T I
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).
1 FULLTEXT
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
108 | PART 1 C O N S T I 1 FULLTEXT
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
109 | PART 1 C O N S T I 1 FULLTEXT
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
110 | PART 1 C O N S T I
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
1 FULLTEXT
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
111 | PART 1 C O N S T I
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
1 FULLTEXT
 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
112 | PART 1 C O N S T I 1 FULLTEXT
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
113 | PART 1 C O N S T I 1 FULLTEXT
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
114 | PART 1 C O N S T I 1 FULLTEXT
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
115 | PART 1 C O N S T I 1 FULLTEXT
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
116 | PART 1 C O N S T I 1 FULLTEXT
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,
117 | PART 1 C O N S T I 1 FULLTEXT
 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 —
118 | PART 1 C O N S T I 1 FULLTEXT
Sec. 3. The right of the people instrumentality thereof, including
to be secure in their persons, government-owned or controlled
houses, papers, and effects corporations, are hereby
against unreasonable searches recognized as legal, valid and
and seizures of whatever nature binding. When the national
and for any purpose shall not be interest so requires, the
violated, and no search warrant incumbent President of the
or warrant of arrest shall Philippines or the interim Prime
issue except upon probable Minister may review all
cause to be determined by the contracts, concessions, permits,
judge, or such other responsible or other forms of privileges for
officer as may be authorized by the exploration, development,
law, after examination under exploitation, or utilization of
oath or affirmation of the natural resources entered into,
complainant and the witnesses granted, issued or acquired
may produce, and particularly before the ratification of this
describing the place to be Constitution.
searched, and the persons or
things to be seized. In the Plebiscite Cases (L-35925, L-35929, L-
35940, L-35942, L-35948, L-35953, L-35961, L-
Article XIV — 35965, & L-35979), Chief Justice Roberto
Concepcion, concurred in by Justices Fernando,
Sec. 15. Any provision of Barredo, Antonio and the writer, overruled this
paragraph one, Section objection, thus:
fourteen, Article Eight and of
this Article notwithstanding, the ... Regardless
Prime Minister may enter into of the wisdom
international treaties or and moral
agreements as the national aspects of the
welfare and interest may contested
require." (Without the consent of provisions of
the National Assembly.) the proposed
Constitution, it
Article XVII — is my
considered view
Sec. 3(2) All proclamations, that the
Convention was
orders, decrees, instructions,
legally deemed
and acts promulgated, issued,
fit to propose —
or done by the incumbent
save perhaps
President shall be part of the
law of the land, and shall remain what is or may
valid, legal, binding and be insistent with
what is now
effective even after lifting of
known,
martial law or the ratification of
particularly in
this Constitution, unless
modified, revoked, or international
law, as Jus
superseded by subsequent
Cogens — not
proclamations, orders, decrees,
only because
instructions, or other acts of the
the Convention
incumbent President, or unless
exercised
expressly and explicitly modified
or repealed by the regular sovereign
National Assembly. powers
delegated
thereto by the
xxx xxx xxx people —
although insofar
Sec. 12. All treaties, executive only as the
agreements, and contracts determination of
entered into by the Government, the proposals to
or any subdivision, agency, or be made and
119 | PART 1 C O N S T I 1 FULLTEXT
 formulated by Mr. Justice Barredo, in his concurring opinion in
said body is said Plebiscite Cases, expressed the view "that
concerned — when the people elected the delegates to the
but also, Convention and when the delegates themselves
because said were campaigning, such limitation of the scope
proposals of their function and objective was not in their
cannot be valid minds."
as part of our
Fundamental V
Law unless and
until "approved
1973 CONSTITUTION DULY ADOPTED AND
by the majority
PROMULGATED.
of the votes
cast at an
election which" Petitioners next claim that the 1971
said proposals Constitutional Convention adjourned on
"are submitted November 30, 1972 without officially
to the people for promulgating the said Constitution in Filipino as
their required by Sections 3(1) of Article XV on
ratification," as General Provisions of the 1973 Constitution.
provided in This claim is without merit because their Annex
Section 1 of "M" is the Filipino version of the 1973
Article XV of the Constitution, like the English version, contains
1935 the certification by President Diosdado
Constitution. Macapagal of the Constitutional Convention,
(Pp. 17-18, duly attested by its Secretary, that the proposed
Decision in L- Constitution, approved on second reading on the
35925, etc.). 27th day of November, 1972 and on third
reading in the Convention's 291st plenary
session on November 29, 1972 and accordingly
This Court likewise enunciated in Del Rosario
signed on November 1972 by the delegates
vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA
whose signatures are thereunder affixed. It
367) that the Constitutional Convention has the
should be recalled that Constitutional
authority to "entirely overhaul the present
Convention President Diosdado Macapagal was,
Constitution and propose an entirely new
as President of the Republic 1962 to 1965, then
Constitution based on an ideology foreign to the
the titular head of the Liberal Party to which four
democratic system ...; because the same will be (4) of the petitioners in L-36165 including their
submitted to the people for ratification. Once counsel, former Senator Jovito Salonga, belong.
ratified by the sovereign people, there can be no
Are they repudiating and disowning their former
debate about the validity of the new
party leader and benefactor?
Constitution."
VI
Mr. Justice Fernando, concurring in the same
Plebiscite Cases, cited the foregoing
pronouncement in the Del Rosario case, supra, ARTICLE XV OF 1935 CONSTITUTION DOES
and added: "... it seems to me a sufficient NOT
answer that once convened, the area open for PRESCRIBE ANY PROCEDURE FOR
deliberation to a constitutional convention ..., is RATIFICATION OF
practically limitless" (citing Cf. Koehler vs. Hill, 1973 CONSTITUTION.
14 NW 738, 60 Iowa 543 [1883]; Hatch
Stoneman, 6 P 734, 66 Cal. 632 [1885]; (1) Article XV of the 1935 Constitution simply
MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 provides that "such amendments shall be valid
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 as part of this Constitution when approved by a
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. majority of the votes cast at an election at which
313 [1911]; Hamilton v. Vaughan, 179 NW 533, the amendments are submitted to the people for
212 Mich. 31 [1920]; State v. Smith, 138 NE ratification."
881, 105 Ohio St. 570 [1922]; Looney vs.
Leeper, 292 P 365, 145 Okl. 202 [1930]; School But petitioners construe the aforesaid provision
District vs. City of Pontiac, 247 NW 474, 262 to read: "Such amendments shall be valid as
Mich. 338 [1933]). part of this Constitution when approved by a
majority of the votes cast at an election called by
Congress at which the amendments are
120 | PART 1 C O N S T I 1 FULLTEXT
submitted for ratification by the qualified electors Article XVIII. Mode of Amending
defined in Article V hereof, supervised by the the Constitution
Commission on Elections in accordance with the
existing election law and after such amendments Sec. 284. Legislative Proposals.
shall have been published in all the newspapers Amendments may be proposed
of general circulation for at least four months to this Constitution by the
prior to such election." legislature in the manner
following: The proposed
This position certainly imposes limitation on the amendments shall be read in
sovereign people, who have the sole power of the house in which they
ratification, which imposition by the Court is originate on three several days,
never justified (Wheeler vs. Board of and, if upon the third reading,
Trustees, supra). three-fifths of all the members
elected to that house shall vote
In effect, petitioners and their counsels are in favor thereof, the proposed
amending by a strained and tortured amendments shall be sent to
construction Article XV of the 1935 Constitution. the other house, in which they
This is a clear case of usurpation of sovereign shall likewise be read on three
power they do not possess — through some several days, and if upon the
kind of escamotage. This Court should not third reading, three-fifths of all
commit such a grave error in the guise of judicial the members elected that house
interpretation. shall vote in favor of the
proposed amendments,
the legislature shall order an
In all the cases where the court held that illegal
election by the qualified electors
or irregular submission, due to absence of
of the state upon such proposed
substantial compliance with the procedure
amendments, to be held either
prescribed by the Constitution and/or the law,
at the general election next
nullifies the proposed amendment or the new
succeeding the session of the
Constitution, the procedure prescribed by the
state Constitution is so detailed that it specifies legislature at which the
amendments are proposed or
that the submission should be at a general or
upon another day appointed by
special election, or at the election for members
the legislature, not less than
of the State legislature only or of all state
three months after the final
officials only or of local officials only, or of both
adjournment of the session of
state and local officials; fixes the date of the
election or plebiscite limits the submission to the legislature at which the
only electors or qualified electors; prescribes the amendments were
proposed. Notice of such
publication of the proposed amendment or a
election, together with the
new Constitution for a specific period prior to the
proposed amendments, shall be
election or plebiscite; and designates the officer
given by proclamation of the
to conduct the plebiscite, to canvass and to
governor, which shall be
certify the results, including the form of the ballot
published in every county in
which should so state the substance of the
such manner as the legislature
proposed amendments to enable the voter to
shall direct, for at least eight
vote on each amendment separately or
successive weeks next
authorizes expressly the Constitutional
preceding the day appointed for
Convention or the legislature to determine the
such election. On the day so
procedure or certain details thereof. See the
appointed an election shall be
State Constitutions of Alabama [1901]; Arizona
held for the vote of the qualified
[1912]; Arkansas [1874]; Colorado [1976];
electors of the state upon the
Connecticut [1818]; Florida [1887]; Georgia
proposed amendments. If such
[1945]; Illinois [1970]; Indiana [1851]; Iowa
[1857]; Kansas [1861]; Kentucky [1891]; election be held on the day of
Louisiana [1921]; Maryland [1867]; the general election, the officers
of such general election shall
Massachusetts [1790]; Michigan [1909];
open a poll for the vote of the
Minnesota [1857]; Mississippi [1890]; and
qualified electors upon the
Missouri [1945]).
proposed amendments; if it be
held on a day other than that of
As typical examples: a general election, officers for
Constitution of Alabama (1901): such election shall be
121 | PART 1 C O N S T I 1 FULLTEXT
 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
122 | PART 1 C O N S T I 1 FULLTEXT
 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
Constitution of Missouri (1945):
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,
123 | PART 1 C O N S T I
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.
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
1 FULLTEXT
 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.
124 | PART 1 C O N S T I 1 FULLTEXT
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
125 | PART 1 C O N S T I 1 FULLTEXT
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
126 | PART 1 C O N S T I 1 FULLTEXT
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
127 | PART 1 C O N S T I
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.
1 FULLTEXT
 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.
128 | PART 1 C O N S T I 1 FULLTEXT
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
129 | PART 1 C O N S T I 1 FULLTEXT
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
130 | PART 1 C O N S T I 1 FULLTEXT
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
131 | PART 1 C O N S T I 1 FULLTEXT
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
132 | PART 1 C O N S T I 1 FULLTEXT
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
133 | PART 1 C O N S T I 1 FULLTEXT
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
134 | PART 1 C O N S T I 1 FULLTEXT
of Executive Order No. 68, the punishment of
President of the Philippines has war criminals is
acted in conformity with the an aspect of
generally accepted principles waging war.
and policies of international law And, in the
which are part of our language of a
Constitution. writer, a military
commission
The promulgation of said "has jurisdiction
executive order is an exercise so long as the
by the President of his powers technical state
as Commander in Chief of all of war
our armed forces, as upheld by continues. This
this Court in the case includes the
of Yamashita vs. Styver (L-129, period of an
42 Off. Gaz., 664) when we said armistice, or
— military
occupation, up
to the effective
"War is not
ended simply date of treaty of
because peace, and may
extend beyond,
hostilities have
by treaty
ceased. After
agreement."
cessation of
armed (Cowles, Trial of
hostilities, War Criminals
by Military
incidents of war
Tribunals,
may remain
American Bar
pending which
Association
should be
disposed of as Journal, June,
in time of war. 1944).
"An important
incident to a Consequently, the President as
conduct of war Commander-in-Chief is fully
is the adoption empowered to consummate this
measures by unfinished aspect of war,
the military namely the trial and punishment
command not of war criminals, through the
only to repel issuance and enforcement of
and defeat the Executive Order No. 68. (83
enemies but to Phil. 177-178; emphasis
seize and supplied).
subject to
disciplinary Chief Justice Stone of the United States
measures those Supreme Court likewise appears to subscribe to
enemies who in this view, when, in his concurring opinion in
their attempt to Duncan vs. Kahanamoku (327 U.S. 304 [1946]),
thwart or he defined martial law as "the exercise of the
impede our power which resides in the executive branch of
military effort the government to preserve order and insure the
have violated public safety in times of emergency, when other
the law of war." branches of the government are unable to
(Ex parte function, or their functioning would itself threaten
Quirin, 317 the public safety." (Emphasis supplied). There is
U.S., 1; 63 Sup. an implied recognition in the aforesaid definition
Ct., 2.) Indeed, of martial law that even in places where the
the power to courts can function, such operation of the courts
create a military may be affected by martial law should their
commission for "functioning ... threaten the public safety." It is
the trial and possible that the courts, in asserting their
135 | PART 1 C O N S T I 1 FULLTEXT
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
136 | PART 1 C O N S T I 1 FULLTEXT
 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
137 | PART 1 C O N S T I 1 FULLTEXT
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
138 | PART 1 C O N S T I 1 FULLTEXT
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 corpuswithout 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
139 | PART 1 C O N S T I 1 FULLTEXT
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
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
140 | PART 1 C O N S T I 1 FULLTEXT
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
141 | PART 1 C O N S T I 1 FULLTEXT
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
142 | PART 1 C O N S T I 1 FULLTEXT
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
143 | PART 1 C O N S T I 1 FULLTEXT
 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
144 | PART 1 C O N S T I 1 FULLTEXT
 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,
1973 , I held the view that this issue could be
1
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. The2
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. It is a
3
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 actions . In
4
the case of Gonzales v. Commission on
Elections , this Court ruled that the issue as to
5
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. Cuenco , this Court held that the
6
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
145 | PART 1 C O N S T I 1 FULLTEXT
constitution has been legally amended is a separately, may
justiciable question.7
propose
amendments to
My study on the subject of whether a question the Constitution
before the court is political or judicial, based on or call a
decisions of the courts in the United States — convention for
where, after all, our constitutional system has that purpose.
been patterned to a large extent — made me Such
arrive at the considered view that it is in the amendments
power of this Court, as the ultimate interpreter of shall be valid as
the Constitution, to determine the validity of the part of this
proposal, the submission, and the ratification of Constitution
any change in the Constitution. Ratification or when approved
non-ratification of a constitutional amendment is by a majority of
a vital element in the procedure to amend the the votes cast
constitution, and I believe that the Court can at an election at
inquire into, and decide on, the question of which the
whether or not an amendment to the amendments
constitution, as in the present cases, has been are submitted to
ratified in accordance with the requirements the people for
prescribed in the Constitution that was their
amended. And so, in the cases now before Us, I ratification."
believe that the question of whether or not the
Constitution proposed by the 1971 Constitutional It is in consonance with the
Convention had been validly ratified or not is a abovequoted provision of the
justiciable question. 1935 Constitution that on March
16, 1967, the Congress of the
The Chief Justice, in his opinion, has discussed Philippines Resolution No. 2
lengthily the subject on whether or not, the calling a convention to propose
cases, before Us involve a political, or a judicial, amendments to the Constitution
question. I fully concur with his conclusion that of the Philippines. Sec. 7 of said
the question involved in these cases is Resolution No. 2 reads as
justiciable. follows:

On the question now of whether or not the "Section 7. The

Constitution proposed by the 1971 Constitutional amendments
Convention has been validly ratified, I am proposed by the
reproducing herein pertinent portions of my Convention
dissenting opinion in the plebiscite cases: shall be valid
and considered
The ratification of the part of the
Constitution proposed by the Constitution
when approved
1971 Constitutional Convention
by a majority of
must be done in accordance
the votes cast in
with the provisions of Section 1,
Article XV of the 1935 an election at
Constitution of the Philippines, which they are
submitted to the
which reads:
people for their
ratification
"Section 1. The pursuant to
Congress in Article XV of the
joint session Constitution.
assembled by a
vote of three
It follows that from the very
fourths of all the
resolution of the Congress of
Members of the
Senate and of the Philippines which called for
the House of the 1971 Constitutional
Convention, there was a clear
Representatives
mandate that the amendments
voting
proposed by the 1971
146 | PART 1 C O N S T I 1 FULLTEXT
Convention, in order to be valid without restraint
and considered part of the and omnipotent
Constitution, must be approved all wise, and it
by majority of the votes cast in as to such
an election at which they are conventions
submitted to the people for the that the remarks
ratification as provided in the of Delegate
Constitution. Manuel Roxas
of the
This Court, in the case Constitutional
of Tolentino vs. Commission Convention of
Elections, L-35140, October 16, 1934 quoted by
1971 (41 SCRA 715), speaking Senator Pelaez
through Mr. Justice Barredo, refer. No
said: amount of
rationalization
can belie the
"The
fact that the
Constitutional
current
Convention of
1971, as any convention
other came into being
only because it
convention of
was called by a
the same
nature, owes its resolution of a
existence and joint session of
all its authority Congress acting
and power from as a constituent
the existing assembly by
Constitution of authority of
the Philippines. Section 1,
This Convention Article XV of the
has not been present
Constitution ...
called by the
."
people directly
as in the case
of a xxx xxx xxx
revolutionary
convention "As to matters
which drafts the not related to its
first Constitution internal
of an entirely operation and
new the
government performance of
born of either a its assigned
war of liberation mission to
from a mother propose
country or of amendments to
revolution the Constitution,
against an the Convention
existing and its officers
government or and members
of a bloodless are all subject
seizure of to all the
power a la coup provisions of
d'etat. As to the existing
such kind of Constitution.
conventions, it Now we hold
is absolutely that even as to
true that the its latter task of
convention is proposing
completely amendments to
147 | PART 1 C O N S T I 1 FULLTEXT
 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
148 | PART 1 C O N S T I
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
1 FULLTEXT
the question as to whether or some question
not the people would still like a or issue. (Leffel
plebiscite to be called to ratify v. Brown, Com.
the new Constitution, P1., 159 N.E.
14,298,814 members of the 2d 807, 808
barangays answered that there cited in 29
was no need for a plebiscite but C.J.S. 13 at
that the vote of the barangays footnote 6.5).
should be considered a vote in a
plebiscite. It would thus appear "... the statutory
that the barangays assumed the method
power to determine whether a whereby qualifie
plebiscite as ordained in the d voters or
Constitution be held or not. electors pass
Indeed, the provision of Section on various
1, Article XV of the Constitution public matters
was completely disregarded. submitted to
them — the
The affirmative votes cast in the election of
barangays are not the votes officers,
contemplated in Section 1 of national, state,
Article XV of the 1935 county,
Constitution. The votes township — the
contemplated in said passing on
constitutional provision are various other
votes obtained through the questions
election processes as provided submitted for
by law. their
determination."
"An election is (29 C.J.S. 13,
the embodiment citing Iowa-
of the popular Illinois Gas &
will, the Elec. Co. v. City
expression of of Bettendorf,
the sovereign 41 N.W. 2d 1, 5,
power of the 241 Iowa 358).
people. In
common "Election" is
parlance, an expression of
election is the choice
act of casting by voters of
and receiving body politic.
the ballots, (Ginsburg v.
counting them, Giles, 72 S.W.
and making the 2d 438, 254 Ky.
return." 720, in Words
(Hontiveros vs. and Phrases,
Altavas, 24 Phil. Permanent
632, 637). Edition, p. 234).

"Election" "The right to

implies a choice vote may be
by an electoral exercised only
body at the time on compliance
and with such
substantially in statutory
the manner and requirements as
with the have been set
safeguards by the
provided by law legislature."
with respect to (People ex rel.
149 | PART 1 C O N S T I 1 FULLTEXT
 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,
150 | PART 1 C O N S T I
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:
1 FULLTEXT
"When it is said Constitutional
that "the Law, Second
people" have Edition, pp. 47-
the right to alter 48).
or amend the
constitution, it "The theory of
must not be our political
understood that system is that
term the ultimate
necessarily sovereignty is in
includes all the the people, from
inhabitants of whom springs
the state. Since all legitimate
the question of authority. The
the adoption or people of the
rejection of a Union created a
proposed new national
constitution or constitution,
constitutional and conferred
amendment upon it powers
must be of sovereignty
answered a on certain
vote, the subjects, and
determination of the people of
it rests with each State
those who, by created a State
existing government, to
constitution, are exercise the
accorded the remaining
right of suffrage. powers of
But the qualified sovereignty so
electors must far as they were
be understood disposed to
in this, as in allow them to
many other be exercised at
cases, as all. By the
representing constitution
those who have which they
not the right to establish, they
participate in not only tie up
the ballot. If a the hands of
constitution their official
should be agencies, but
abrogated and their own hands
a new one as well; and
adopted, by the neither the
whole mass of officers of the
people in a State, nor the
state acting whole people as
through an aggregate
representatives body, are at
not chosen by liberty to take
the "people" in action in
political sense opposition to
of the term, but this
by the general fundamental
body of the law." (Cooley's
populace, the Constitutional
movement Limitations, 8th
would be extra- Edition, Vol. I,
legal." (BIack's p. 81 cited in
151 | PART 1 C O N S T I 1 FULLTEXT
Graham v. means of a
Jones, 3 So. 2d. constitutional
761, 782). convention, or
of an
"The theory that amendment
a favorable vote according to the
by the mode therein
electorate, prescribed, or
however through the
unanimous, on exertion of the
a proposal to original right of
amend a revolution. "The
constitution, Constitution
may cure, may be set
render aside by
innocuous, all revolution, but it
or any can only be
antecedent amended in the
failures to way it
observe provides," said
commands of Hobson, C.J., in
that Constitution McCreary v.
in respect of the Speer, 156 Ky.
formulation or 783, 791, 162
submission of S.W. 99, 103.
proposed (Johnson vs.
amendments Craft, et al., 87
thereto, does So. 375, 385,
not prevail in 387, On
Alabama, where Rehearing).
the doctrine of
the stated "The fact that a
theory was majority voted
denied, in for the
obvious effect, amendment,
by the unless the vote
pronouncement was taken as
60 years ago of provided by the
broad, Constitution, is
wholesome not sufficient to
constitutional make a change
principles in that
in Collier v. instrument.
Frierson, supra, Whether a
as quoted in the proposed
original opinion, amendment has
ante. The been legally
people adopted is a
themselves are judicial
bound by the question, for the
Constitution; court must
and, being so uphold and
bound, are enforce the
powerless, Constitution as
whatever their written until it is
numbers, to amended in the
change or way which it
thwart its provides
mandates, for." Wood v.
except through Tooker, 15
the peaceful Mont. 8, 37 Pac
152 | PART 1 C O N S T I 1 FULLTEXT
840, 25 L.R.A. contained in the
560; McConaug constitution."
hty v. State, 106 (16 C.J.S. 35-
Minn. 409, 119 36. cited in
N.W. Graham v.
408; Oakland Jones, 3 So. 2d
Paving 761, 782).
Company v.
Hilton, 69 Cal. "It is said that
499, 11 Pac. chaos and
3; Utter v. confusion in the
Mosely, 16 government
Idaho 274, 100 affairs of the
Pac. 1958, 133 State will result
Am. St. Rep. from the Court's
94, 18 Ann. action in
Cas. 723. declaring the
(McCreary v. proposed
Speer, 162 constitutional
S.W. 99, 104). amendment
void. This
"Provisions of a statement is
constitution grossly and
regulating its manifestly
own inaccurate. If
amendment, ... confusion and
are not merely chaos should
directory, but ensue, it will not
are mandatory; be due to the
and a strict action of the
observance of Court but will be
every the result of the
substantial failure of the
mandatory; and drafters joint
a strict resolution to
observance of observe, follow
every and obey the
substantial plain essential
requirement is provisions of
essential to the the Constitution.
validity of the Furthermore, to
proposed say that, the
amendment. Court
These disregards its
provisions are sworn duty to
as binding on enforce the
the people as Constitution,
on the chaos and
legislature, and confusion will
the former are result, is an
powerless by inherently weak
vote of argument in
acceptance to favor of the
give legal alleged
sanction to an constitutionality
amendment the of the proposed
submission of amendment. It
which was is obvious that,
made in if the Court
disregard of the were to
limitations countenance
153 | PART 1 C O N S T I 1 FULLTEXT
 the violations of candidacy. The boards of
the sacramental inspectors in Miagao, however,
provisions did not count the votes cast for
Constitution, Monsale upon the ground that
those who the votes cast for him were stray
would thereafter votes, because he was
desire to violate considered as having no
it disregard its certificate of candidacy. On the
clear mandatory other hand, the boards of
provisions inspectors credited Nico with
would resort to 2,291 votes, and Nico was
the scheme of proclaimed elected. Monsale
involving and filed a protest against the
confusing the election of Nico in the Court of
affairs of the First Instance of Iloilo. In the
State then count of the ballots during the
simply tell the proceedings in the trial court, it
Court that it was appeared that Monsale had
powerless to obtained 2,877 votes while Nico
exercise one of obtained 2,276 votes, or a
its primary margin of 601 votes in favor of
functions by Monsale. The Court of First
rendering the Instance of Iloilo decided the
proper decree election protest in favor of
to make the Monsale. Upon appeal by Nico,
Constitution this Court reversed the decision
effective." of the lower court. This Court
(Graham v. declared that because Monsale
Jones, 3 So. 2d. withdrew his certificate of
761, 793-794). candidacy, his attempt to revive
it by withdrawing his withdrawal
In our jurisprudence I find an of his certificate of candidacy
instance where this Court did did not restore the effectiveness
not allow the will of the majority of his certificate of candidacy,
to prevail, because the and this Court declared Nico the
requirements of the law were winner in spite of the fact that
not complied with. In the case Monsale had obtained more
of Monsale v. Nico, 83 Phil. 758, votes than he.
Monsale and Nico were both
candidates for the office of We have cited this Monsale
Municipal Mayor of Miagao, case to show that the will of the
Iloilo, in the elections of majority of the voters would not
November 11, 1947. Monsale be given effect, as declared by
had duly filed his certificate of this Court, if certain legal
candidacy before the expiration requirements have not been
of the period for the filing of the complied with in order to render
same. However, on October 10, the votes valid and effective to
1947, after the period for the decide the result of an election.
filing of the certificate of
candidacy, Monsale withdrew And so, in the cases now before
his certificate of candidacy. But this Court, the fact that the
on November 7, 1947 Monsale voting in the citizens assemblies
attempted to revive his (barangays) is not the election
certificate of candidacy by that is provided for in the 1935
withdrawing the withdrawal of Constitution for the ratification of
certificate of candidacy. The the amendment to the
Commission on Elections, Constitution, the affirmative
November 8, 1947, ruled that votes cast in those assemblies
Monsale could no longer be a can not be made the basis for
candidate. Monsale declaring the ratification of the
nevertheless proceeded with his proposed 1972 Constitution, in
154 | PART 1 C O N S T I 1 FULLTEXT
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." Thus, in Section
8
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. Crescini , this Court,
9
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, this Court, speaking through Mr.
10
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
155 | PART 1 C O N S T I 1 FULLTEXT
established authority." And in the case of Abanil
v. Justice of the Peace of Bacolod, this Court
11
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
156 | PART 1 C O N S T I 1 FULLTEXT
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
157 | PART 1 C O N S T I 1 FULLTEXT
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
158 | PART 1 C O N S T I 1 FULLTEXT
 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." Strict accuracy would of course
1
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, it2
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." That is why
3
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." Nonetheless, as was stressed by
4
Professors Black and Murphy, a Supreme
5 6
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
159 | PART 1 C O N S T I 1 FULLTEXT
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. Since the
7
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, Tolentino and Planas cases speak
8 9 10
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, "cannot be
11
treated as unrelated acts, but as succeeding
steps in a single endeavor." Once an aspect
12
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. Thus: "The term has been made
13
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." The view
14
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." After a thorough study of
15
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." Nor was
16
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." What appears
17
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.
160 | PART 1 C O N S T I 1 FULLTEXT
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 of Yale and Professor Freund of
18 19
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, decided in 1937: "If it is ever
21
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." The hope of course
22
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 to Planas v. Commission on
23
Elections. It should continue to exercise its
24
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." He went on to
25
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." His view was precisely the
26
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
161 | PART 1 C O N S T I 1 FULLTEXT
constitutional power which arise in the process
of government." More than that, he took pains
27
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.' " Nor is
28
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.' " Professor Konefsky, like Dean
29
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." This is not to deny that there are those
31
who would place the blame or the credit,
depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. Curtis32
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." At 33
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 ... ." The above
34
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?" It is no
35
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." Let me 36
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, decided in 1962 and Powell v.
37
MacCormack, in 1969, both noted in the
38
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
162 | PART 1 C O N S T I 1 FULLTEXT
very deep into the very being of
Congress." For him, the judiciary "ought not to
40
enter this political thicket." Baker has since then
been followed; it has spawned a host of
cases. Powell, on the question of the power of
41
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, It does look then that even in the
42
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." As43
for Professor Bickel, it has been said that as
counsel for the New York Times in the famous
Vietnam papers case, he was less than
44
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. It has brought forth a
45
plethora of law review articles, the reaction
ranging from guarded conformity to caustic
criticism. There was, to be sure, no clear call to
46
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, if my reading of the events and the
48
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, and they are not few in
49
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
163 | PART 1 C O N S T I 1 FULLTEXT
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, submitting to the Filipino
51
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." Then came the statute, calling
52 53
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, reducing the term of the President
54
to four years but allowing his re-election with the
limitation that he cannot serve more than eight
consecutive years, and creating an
55
independent Commission on Elections. Again, 56
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." The approval of the present parity
57
amendment was by virtue of a Republic
Act which specifically made applicable the then
58
Election Code. There is a similar provision in
59
the
legislation, which in cotemplation of the 1971
60
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. That is the consistent course of
61
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, then this Court cannot refuse to
62
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." If the origins of the democratic
63
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." From
64
them, as Corwin did stress, emanate "the
highest possible embodiment of human
will," which is supreme and must be obeyed.
65
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, decided in 1892, it was set forth in
66
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
164 | PART 1 C O N S T I 1 FULLTEXT
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." In Taylor v. Commonwealth, a
67 68
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
165 | PART 1 C O N S T I 1 FULLTEXT
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. Once 70
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
166 | PART 1 C O N S T I 1 FULLTEXT
primordial necessity of order in the social life."
Wide enough in all conscience is the field of
discretion that remains." Moreover what made it
71
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 peoplefor 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 aplebiscite 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
167 | PART 1 C O N S T I 1 FULLTEXT
 — "(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: and Tolentino ca
5 6
ses.
— 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" and under the
9
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, wherein the Court in its Resolution of
11
September 16, 1949 after judgment was
initially not obtained on August 26, 1949 for lack
of the required six (6) votes, finally declared in
168 | PART 1 C O N S T I 1 FULLTEXT
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.
169 | PART 1 C O N S T I 1 FULLTEXT
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
170 | PART 1 C O N S T I 1 FULLTEXT
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" in the exercise of
18
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", participated
19
in only by qualified and
duly registered voters twenty-one years of age
or over and duly supervised by the
20
Commission on Elections, in accordance with
21
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", that the
22
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", and that the Comelec is
23
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 the U.S. Supreme
25
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, "(T)he Constitution sets forth in
26
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 the "climactic phrase," "we must
27 28
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." This enduring concept to my
29
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
171 | PART 1 C O N S T I 1 FULLTEXT
political question and that the Convention being with the
a legislative body of the highest order is same ease and facility in
sovereign, and as such, its acts impugned by changing an ordinary legislation.
petitioner are beyond the control of Congress Constitution making is the most
and the Courts." 30
valued power, second to none,
of the people in a constitutional
This Court therein made its unequivocal choice democracy such as the one our
of strictly requiring faithful (which really includes founding fathers have chosen
substantial) compliance with for this nation, and which we of
the mandatory requirements of the amending the succeeding generations
process. generally cherish. And because
the Constitution affects the lives,
fortunes,future and every other
1. In denying reconsideration of our judgment of
conceivable aspect of the lives
October 16, 1971 prohibiting the submittal in an
of all the people within the
advance election of 1971 Constitutional
country and those subject to its
Convention's Organic Resolution No. 1
sovereignty, every degree of
proposing to amend Article V, section 1 of the
care is taken in preparing and
Constitution by lowering the voting age to 18
drafting it. A constitution worthy
years (vice 21 years) 30a "without prejudice to
other amendments that will be proposed in the of the people for deliberation
future ... on other portions of the amended and study. It is obvious that
correspondingly, any
section", this Court stated that "the constitutional
amendment of the Constitution
provision in question (as proposed) presents no
is of no less importance than the
doubt which may be resolved in favor of
respondents and intervenors. We do not believe whole Constitution itself, and
such doubt can exist only because it is urged perforce must be conceived and
that the end sought to be achieved is to prepared with as much care and
be desired. Paraphrasing no less than the deliberation. From the very
nature of things, the drafters of
President of Constitutional Convention of 1934,
an original constitution, as
Claro M. Recto, let those who would put aside,
invoking grounds at best controversial, any already observed earlier,
mandate of the fundamental law purportedly in operate without any limitations,
restraints or inhibitions save
order to attain some laudable objective bear in
those that they may impose
mind that someday somehow others with
upon themselves. This is not
purportedly more laudable objectives may take
necessarily true of subsequent
advantage of the precedent and continue the
destruction of the Constitution, making those conventions called to amend the
who laid down the precedent of justifying original constitution. Generally,
the framers of the latter see to it
deviations from the requirements of the
that their handiwork is not lightly
Constitution the victims of their own folly." 31

treated and as easily mutilated

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
172 | PART 1 C O N S T I
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
1 FULLTEXT
 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. Comelec , thus:
33
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 basisfor
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 in a 35
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,
173 | PART 1 C O N S T I 1 FULLTEXT
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 thepeople had said, 'This
Constitution may be amended,
but it is our will that the
amendment must
beproposed 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
174 | PART 1 C O N S T I 1 FULLTEXT
 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
175 | PART 1 C O N S T I
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 thepeople 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
1 FULLTEXT
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
apolitical 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
176 | PART 1 C O N S T I 1 FULLTEXT
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 with a constitutional
43
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
177 | PART 1 C O N S T I 1 FULLTEXT
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 comply with the suffrage qualifications
49
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 has been called or held,
51
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 between the reports as
52
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; whether the reported votes of approval
53
of the proposed Constitution conditioned upon
the non-convening of the interim National
Assembly provided in Article XVII, section 1
178 | PART 1 C O N S T I 1 FULLTEXT
thereof, may be considered as valid; the
54
for the approval of the
allegedly huge and uniform votes reported; and resolution, the resolution portion
many others. of which read as follows:

3. These questions only serve to justify and "RESOLVED,

show the basic validity of the universal principle AS IT IS
governing written constitutions that proposed HEREBY
amendments thereto or in replacement thereof RESOLVED,
may be ratified only in the particular mode or that the 1971
manner prescribed therein by the people. Under Constitutional
Article XV, section 1 of our Constitution, Convention
amendments thereto may be ratified only in propose to
the one way therein provided, i.e. in an election President
or plebiscite held in accordance with law and Ferdinand E.
duly supervised by the Commission on Marcos that a
Elections, and which is participated in only by decree be
qualified and duly registered voters. In this issued calling a
manner, the safeguards provided by the election plebiscite for
code generally assure the true ascertainment of the ratification
the results of the vote and interested parties of the proposed
would have an opportunity to thresh out properly New
before the Comelec all such questions in pre- Constitution on
proclamation proceedings. such
appropriate
4. At any rate, unless respondents seriously date as he shall
intend to question the very statements and determine and
pronouncements in Proclamation 1102 itself providing for the
which shows on its face, as already stated, that necessary
the mandatory amending process required by funds therefor,
the (1935) Constitution was not observed, the and that copies
cases at bar need not reach the stage of of this
answering the host of questions, raised by resolution as
petitioners against the procedure observed by approved in
the Citizens Assemblies and the reported plenary session
referendum results — since the purported be transmitted
ratification is rendered nugatory by virtue of such to the President
non-observance. of the
Philippines and
the Commission
5. Finally, as to respondents' argument that the
on Elections for
President issued Proclamation 1102 "as "agent"
implementation.
of the Constitutional Convention" under
55

Resolution No. 5844 approved on November 22, "

1973, and "as agent of the Convention the
President could devise other forms of plebiscite He suggested that in view of the
to determine the will of the majority vis-a-vis the expected approval of the final
ratification of the proposed Constitution." 56 draft of the new Constitution by
the end of November 1972
according to the Convention's
The minutes of November 22, 1972, of the
timetable, it would be necessary
Convention, however, do not at all support this
to lay the groundwork for the
contention. On the contrary, the said minutes
appropriate agencies of the
fully show that the Convention's proposal and
"agency" was that the President issue a decree government to undertake the
precisely calling a plebiscite for the ratification of necessary preparation for the
plebiscite.
the proposed new Constitution on an appropriate
date, under the charge of the Comelec, and with
a reasonable period for an information xxx xxx xxx
campaign, as follows:
12.2 Interpellating, Delegate
12. Upon recognition by the Pimentel (V.) contended that the
Chair, Delegate Duavit moved resolution was unnecessary
because section 15, Article XVII
179 | PART 1 C O N S T I 1 FULLTEXT
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
theplebiscite would be laid down
by the Commission on
Elections in coordination with
the President.
180 | PART 1 C O N S T I
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.
1 FULLTEXT
 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.
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
P in
a constitutional democracy entails the r
concentration of governmental power. "The o
more complete the separation of powers m in a
constitutional system, the more difficult, and
u yet
the more necessary" according to Rossiter, l "will
be their fusion in time of crisis... The power
g of
the state in crisis must not only be concentrated
a
and expanded, it must be freed from the normal
t
system of constitutional and legal limitations.
e
One of the basic features of emergency powers
d
is the release of the government from the:
paralysis of constitutional restraints" (Rossiter,
Constitutional Dictatorship, p. 290). J
u
It is clearly recognized that in moments ofn peril
the effective action of the government is e
channeled through the person of the Chief
Executive. "Energy in the executive," according
4
to Hamilton, "is essential to the protection, of the
community against foreign attacks ... to the
protection of property against those irregular
1 and
high-handed combinations which sometimes 9
interrupt the ordinary course of justice; to7the
security of liberty against the enterprises 3and
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
181 | PART 1 C O N S T I 1 FULLTEXT
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 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.
182 | PART 1 C O N S T I 1 FULLTEXT
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
183 | PART 1 C O N S T I 1 FULLTEXT
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. The 1973 Constitution is not a
1 prescribed in detail the procedure under which
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
the Constitution may be amended or
revised. This is not true with our Constitution. In
2
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
184 | PART 1 C O N S T I 1 FULLTEXT
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
185 | PART 1 C O N S T I 1 FULLTEXT
 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." Such change in
5
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." It involves in
6
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
186 | PART 1 C O N S T I 1 FULLTEXT
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.
187 | PART 1 C O N S T I 1 FULLTEXT
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.
188 | PART 1 C O N S T I 1 FULLTEXT
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
189 | PART 1 C O N S T I 1 FULLTEXT
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
190 | PART 1 C O N S T I 1 FULLTEXT
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
191 | PART 1 C O N S T I 1 FULLTEXT
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
192 | PART 1 C O N S T I 1 FULLTEXT
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
193 | PART 1 C O N S T I 1 FULLTEXT
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.
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 faciecase 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 andplebiscites 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
194 | PART 1 C O N S T I 1 FULLTEXT
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
aplebiscite 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
195 | PART 1 C O N S T I 1 FULLTEXT
are registered in the lists of Citizen Assembly accordance with the provisions
members kept by the barrio, district or ward of the 1935 Constitution?
secretary." By Presidential Decree No. 86-A,
dated January 5, 1973, the Assemblies were (5) If the elections would not be
convened for a referendum between January 10 held, when do you want the next
and 15, to "consider vital national issues now elections to be called?
confronting the country, like the holding of the
plebiscite on the new Constitution, the (6) Do you want martial law to
continuation of martial rule, the convening of continue? [Bulletin Today,
Congress on January 22, 1973, and the holding
January 11, 1973; emphasis
of elections in November 1973."
supplied].

On January 5, 1973 the newspapers came out Appended to the six additional questions above
with a list of four questions to be submitted to quoted were the suggested answers, thus:
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 COMMENTS ON
noted in this connection that the President had
previously announced that he had ordered the QUESTION No.
postponement of plebiscite which he had called 1
for January 15, 1973 (Presidential Decree No.
73) for the ratification of the Constitution, and In order to
that he was considering two new dates for the broaden the
purpose — February 19 or March 5; that he had base of citizens'
ordered that the registration of voters (pursuant participation in
to Decree No. 73) be extended to accommodate government.
new voters; and that copies of the new
Constitution would be distributed in eight dialects QUESTION No.
the people. (Bulletin Today, December 24, 2
1972.)
But we do not
On January 10, 1973 it was reported that one want the Ad
more question would be added to the original Interim
four which were to be submitted to the Citizens Assembly to be
Assemblies. The question concerning plebiscite convoked. Or if
was reworded as follows: "Do you like the it is to be
plebiscite to be held later?" The implication, it convened at all,
may likewise be noted, was that the Assemblies it should not be
should express their views as to the plebiscite done so until
should be held, not as to whether or not it should after at least
be held at all. seven (7) years
from the
The next day, January 11, it was reported that approval of the
six additional questions would be submitted, New
namely: Constitution by
the Citizens
(1) Do you approve of the Assemblies.
citizens assemblies as the base
of popular government to decide QUESTION No.
issues of national interest? 3

(2) Do you approve of the new If the Citizens

Constitution? Assemblies
approve of the
(3) Do you want a plebiscite to New
be called to ratify the new Constitution,
Constitution? then the new
Constitution
(4) Do you want the elections to should be
be held in November, 1973 deemed ratified.

196 | PART 1 C O N S T I 1 FULLTEXT

The vote of the country. If all
Citizens other measures
Assemblies fail, we want
should already President
be considered Marcos to
the plebiscite on declare a
the New revolutionary
Constitution. government
along the lines
QUESTION No. of the new
4 Constitution
without the ad
interim
We are sick and
tired of too Assembly.
frequent
elections. We So it was that on January 11, 1973, the second
are fed up with day of the purported referendum, the suggestion
politics, of so was broached, for the first time, that the
many debates plebiscite should be done away with and a
and so much favorable vote by the Assemblies deemed
expenses. equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer
to question No. 3. Strangely, however, it was not
QUESTION No.
similarly suggested that an unfavorable vote be
5
considered as rejection.
Probably a
There should be no serious dispute as to the fact
period of at
that the manner in which the voting was
least seven (7)
years conducted in the Citizen Assemblies, assuming
moratorium on that such voting was held, was not within the
intendment of Article XV, Section 1, of the 1935
elections will be
Constitution nor in accordance with the Election
enough for
Code of 1971. The referendum can by no means
stability to be
be considered as the plebiscite contemplated in
established in
the country, for Section 2 of said Code and in Article XVII,
reforms to take Section 16, of the draft Constitution itself, or as
the election intended by Congress when it
root and
passed Resolution No. 2 on March 16, 1967
normalcy to
calling a Convention for the revision of the 1935
return.
Constitution. The Citizens Assemblies were not
limited to qualified, let alone registered voters,
QUESTION No. but included all citizens from the age of fifteen,
6 and regardless of whether or not they were
illiterates, feeble-minded, or ex convicts * — these being the
We want 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.
President 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
Marcos to 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
continue with assessment of the results.

Martial Law. We
want him to It has been suggested that since according to
exercise his Proclamation No. 1102 the overwhelming
powers with majority of all the members of the Citizens
more authority. Assemblies had voted for the adoption of the
We want him to proposed Constitution there was a substantial
be strong and compliance with Article XV, Section 1, of the
firm so that he 1935 Constitution and with the Election Code of
can accomplish 1971. The suggestion misses the point entirely.
all his reform It is of the essence of a valid exercise of the right
program and of suffrage that not only must a majority or
establish plurality of the voters carry the day but that the
normalcy in the same must be duly ascertained in accordance
197 | PART 1 C O N S T I 1 FULLTEXT
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
198 | PART 1 C O N S T I 1 FULLTEXT
legislative enactments not justified under martial It should be noted that the above statement from
law and, in some instances, trenched upon the Luther vs. Borden would be applicable in the
domain of the judiciary, by removing from its cases at bar only on the premise that the
jurisdiction certain classes of cases, such as ratification of the Constitution was a
"those involving the validity, legality, or revolutionary act and that the government now
constitutionality of Proclamation No. 1081, or of functioning it is the product of such revolution.
any decree, order or act issued, promulgated or However, we are not prepared to agree that the
performed by me or by my duly designated premise is justified.
representative pursuant thereto." (General Order
No. 3 as amended by General Order No. 3-A, In the first, place, with specific reference to the
dated September 24, 1972.) The ratification by questioned ratification, several significant
the Citizens Assemblies, it is averred, was the circumstances may be noted. (1) The Citizens
culminating act of the revolution, which Assemblies were created, according to
thereupon converted the government into a de Presidential Decree No. 86, "to broaden the
jure one under the 1973 Constitution. base of citizen participation in the democratic
process and to afford ample opportunities for the
If indeed it be accepted that the Citizens citizenry to express their views on important
Assemblies had ratified the 1973 Constitution national issues." (2) The President announced,
and that such ratification as well as the according to the Daily Express of January 2,
establishment of the government thereunder 1973, that "the referendum will be in the nature
formed part of a revolution, albeit peaceful, then of a loose consultation with the people." (3) The
the issue of whether or not that Constitution has question, as submitted to them on the particular
become effective and, as necessary corollary, point at issue here, was "Do you a approve
whether or not the government legitimately of the Constitution?" (4) President Marcos, in
functions under it instead of under the 1935 proclaiming that the Constitution had been
Constitution, is political and therefore non- ratified, stated as follows: "(S)ince the
judicial in nature. Under such a postulate what referendum results show that more than ninety-
the people did in the Citizen Assemblies should five (95) per cent of the members of the
be taken as an exercise of the ultimate Barangays (Citizens Assemblies) are in favor of
sovereign power. If they had risen up in arms the new Constitution, the Katipunan ng mga
and by force deposed the then existing Barangay has strongly recommended that the
government and set up a new government in its new Constitution should already be
place, there could not be the least doubt that deemed ratified by the Filipino people." (5)
their act would be political and not subject to There was not enough time for the Citizens
judicial review but only to the judgment of the Assemblies to really familiarize themselves with
same body politic act, in the context just set the Constitution, much less with the many other
forth, is based on realities. If a new government subjects that were submitted to them. In fact the
gains authority and dominance through force, it plebiscite planned for January 15, 1973 under
can be effectively challenged only by a stronger Presidential Decree No. 73 had been postponed
force; judicial dictum can prevail against it. We to an indefinite date, the reasons for the
do not see that situation would be any different, postponement being, as attributed to the
as far as the doctrine of judicial review is President in the newspapers, that "there was
concerned, if no force had been resorted to and little time to campaign for or against ratification"
the people, in defiance of the existing (Daily Express, Dec. 22, 1972); that he would
Constitution but peacefully because of the base his decision (as to the date, of the
absence of any appreciable opposition, ordained plebiscite) on the compliance by the
a new Constitution and succeeded in having the Commission (on Elections) on the publication
government operate under it. Against such a requirement of the new Charter and on the
reality there can be no adequate judicial relief; position taken by national leaders" (Daily
and so courts forbear to take cognizance of the Express, Dec. 23, 1972); and that "the
question but leave it to be decided through postponement would give us more time to
political means. debate on the merits of the Charter." (Bulletin
Today, Dec. 24, 1972.)
The logic of the political-question doctrine is
illustrated in statement of the U.S. Supreme The circumstances above enumerated lead us to
Court in a case * relied upon, curiously enough, by the Solicitor General, who disagrees the conclusion that the Citizens Assemblies
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 could not have understood the referendum to be
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
for the ratification of the Constitution, but only for
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
the expression of their views on a consultative
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 basis. Indeed, if the expression of those views
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. had been intended as an act of ratification (or of
199 | PART 1 C O N S T I 1 FULLTEXT
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.
200 | PART 1 C O N S T I 1 FULLTEXT
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.
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:

On the other hand, by avowals no less xxx xxx xxx

significant if not so emphatic in terms, President
Marcos has professed fealty to the Constitution. Q. Now that you
In "Today's Revolution: Democracy" he says: have gotten off
the
I believe, therefore, in the constitutional
necessity of Revolution as an track, won't you
instrument of individual and be in serious
social change ... but that in a trouble if you
democratic society, revolution is run into critical

201 | PART 1 C O N S T I 1 FULLTEXT

problems with provision) was
your programs? lifted from the
American
R. I have never legislation that
gotten off the was the
constitutional fundamental
track. law of our
Everything I am country.
doing is in
accordance with xxx xxx xxx
the 1935
Constitution. In the light of this seeming ambivalence, the
The only thing choice of what course of action to pursue
is that instead belongs to the President. We have earlier made
of 18-year-olds reference to subjective factors on which this
voting, we have Court, to our mind, is in no position to pass
allowed 15- judgment. Among them is the President's own
year-olds the assessment of the will of the people as
right to vote. expressed through the Citizens Assemblies and
But the 15-year- of the importance of the 1973 Constitution to the
olds of today successful implementation of the social and
are high-school economic reforms he has started or envisioned.
students, if not If he should decide that there is no turning back,
graduates, and that what the people recommended through the
they are better Citizens Assemblies, as they were reported to
informed than him, demand that the action he took pursuant
my thereto be final and irrevocable, then judicial
contemporaries review is out of the question.
at that age. On
the matter of In articulating our view that the procedure of
whether it is ratification that was followed was not in
constitutional to
accordance with the 1935 Constitution and
proclaim martial
related statutes, we have discharged our sworn
law, it is
duty as we conceive it to be. The President
constitutional
should now perhaps decide, if he has not
because the already decided, whether adherence to such
Constitution procedure is weighty enough a consideration, if
provides for it in
only to dispel any cloud of doubt that may now
the event of
and in the future shroud the nation's Charter.
invasion,
insurrection,
rebellion or In the deliberations of this Court one of the
immediate issues formulated for resolution is whether or not
danger thereof. the new Constitution, since its submission to the
We may quarrel Citizens Assemblies, has found acceptance
about whether among the people, such issue being related to
what we have the political question theory propounded by the
gone through is respondents. We have not tarried on the point at
sufficient cause all since we find no reliable basis on which to
to proclaim form a judgment. Under a regime of martial law,
martial law but with the free expression of opinions through the
at the very least usual media vehicles restricted, we have no
there is a means of knowing, to the point of judicial
danger of certainty, whether the people have accepted the
rebellion Constitution. In any event, we do not find the
because so issue decisive insofar as our vote in these cases
many of our is concerned. To interpret the Constitution —
soldiers have that is judicial. That the Constitution should be
been killed. You deemed in effect because of popular
must remember acquiescence — that is political, and therefore
this (martial law beyond the domain of judicial review.

202 | PART 1 C O N S T I 1 FULLTEXT

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
203 | PART 1 C O N S T I 1 FULLTEXT
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
204 | PART 1 C O N S T I 1 FULLTEXT
 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)
205 | PART 1 C O N S T I
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
1 FULLTEXT
 Our Lord, nineteen hundred and point out, the most relevant of these "comments"
seventy-three. were the following:

And so it was that by January 10, 1973, when COMMENTS ON

the Citizens Assemblies thus created started the
referendum which was held from said date to xxx xxx xxx
January 15, 1973, the following questions were
submitted to them: QUESTION No.
2
(1) Do you like the New
Society?
But we do not
want the Ad
(2) Do you like the reforms Interim
under martial law? Assembly to be
convoke. Or if it
(3) Do you like Congress again is to be
to hold sessions? convened at all,
it should not be
(4) Do you like the plebiscite to done so until
be held later? after at least
seven (7) years
(5) Do you like the way from the
President Marcos is running the approval of the
New
affairs of the government?.
Constitution by
the Citizens
but on January 11, 1973, six questions were Assemblies.
added as follows:
QUESTION No.
(1) Do you approve of the 3
citizens assemblies as the base
of popular government to decide
issues of national interests? The vote of the
Citizens
Assemblies
(2) Do you approve of the New should already
Constitution? be considered
the plebiscite on
(3) Do you want a plebiscite to the New
be called to ratify the new Constitution.
Constitution?
If the Citizens
(4) Do you want the elections to Assemblies
be held in November, 1973 in approve of the
accordance with the provisions new
of the 1935 Constitution? Constitution
then the new
(5) If the elections would not be Constitution
held, when do you want it to be should be
called? deemed ratified.

(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
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

206 | PART 1 C O N S T I 1 FULLTEXT

 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
207 | PART 1 C O N S T I
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
1 FULLTEXT
 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. Their common target
1 decision reserved petitioners the filing of the
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
"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
208 | PART 1 C O N S T I 1 FULLTEXT
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 agreement or law, the Court would
2
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
209 | PART 1 C O N S T I 1 FULLTEXT
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
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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
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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,
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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
213 | PART 1 C O N S T I 1 FULLTEXT
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
214 | PART 1 C O N S T I 1 FULLTEXT
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,
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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
216 | PART 1 C O N S T I 1 FULLTEXT
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 in that respect, whether sophisticatedly or
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
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.
217 | PART 1 C O N S T I 1 FULLTEXT
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,
218 | PART 1 C O N S T I 1 FULLTEXT
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-
219 | PART 1 C O N S T I 1 FULLTEXT
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
220 | PART 1 C O N S T I 1 FULLTEXT
 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
221 | PART 1 C O N S T I 1 FULLTEXT
 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
222 | PART 1 C O N S T I 1 FULLTEXT
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
223 | PART 1 C O N S T I 1 FULLTEXT
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
224 | PART 1 C O N S T I 1 FULLTEXT
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
225 | PART 1 C O N S T I
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
1 FULLTEXT
 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).
The Court in the Taylor case above-mentioned
Even a constitutional amendment that is only
further said:
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.
In the 1925 case of Taylor vs. King (130 A 407,
The Constitution of 1902 was
408 410), the Court stated:
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,
226 | PART 1 C O N S T I
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).
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.
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,
1 FULLTEXT
 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
227 | PART 1 C O N S T I 1 FULLTEXT
19, 1973 (Annex Rejoinder-3 to Consolidated government must resist until
Rejoinder of petitioners in L-36165). Only the they are overturned by power,
five (5) petitioners in L-36165 close their eyes to and a new government
a fait accompli. All the other functionaries established. The convention,
recognize the new government and are however, was the offspring of
performing their duties and exercising their law. The instrument which we
powers under the 1973 Constitution, including are asked to declare invalid as a
the lower courts. The civil courts, military constitution has been made and
tribunals and quasi-judicial bodies created by promulgated according to the
presidential decrees have decided some forms of law. It is a matter of
criminal, civil and administrative cases pursuant current history that both the
to such decrees. The foreign ambassadors who executive and legislative
were accredited to the Republic of the branches of the government
Philippines before martial law continue to serve have recognized its validity as a
as such in our country; while two new constitution, and are now daily
ambassadors have been accepted by the doing so. Is the
Philippines after the ratification of the 1973 question, therefore, one of a
Constitution on January 17, 1973. Copies of the judicial character? It is our
1973 Constitution had been furnished the United undoubted duty, if a statute be
Nations Organization and practically all the other unconstitutional to so declare it;
countries with which the Philippines has also, if a provision of the state
diplomatic relations. No adverse reaction from constitution be in conflict with
the United Nations or from the foreign states has the federal constitution, to hold
been manifested. On the contrary, our the former invalid. But this is a
permanent delegate to the United Nations very different case. It may be
Organization and our diplomatic representatives said, however, that, for every
abroad appointed before martial law continue to violation of or non-compliance
remain in their posts and are performing their with the law, there should be a
functions as such under the 1973 Constitution. remedy in the courts. This is
not, however, always the case.
Even the Commission on Elections is now For instance, the power of a
implementing the provisions of the 1973 court as to the acts of the other
Constitution by requiring all election registrars to departments of the government
register 18-year olds and above whether is not an absolute one, but
literates or not, who are qualified electors under merely to determine whether
the 1973 Constitution (see pars. 1-A(c), (d), & they have kept within
(e) of Annex A to Notes of respondents Puyat constitutional limits, it is a duty
and Roy in L-36165). rather than a power, The
judiciary cannot compel a co-
equal department to perform a
In brief, it cannot be said that the people are
duty. It is responsible to the
ignoring the 1973 Constitution and the
people; but if it does act, then,
government which is enforcing the same for over
10 weeks now With the petitioners herein, when the question is properly
presented, it is the duty of the
secessionists, rebels and subversives as the
court to say whether it has
only possible exceptions, the rest of the citizenry
conformed to the organic
are complying with decrees, orders and circulars
law. While the judiciary should
issued by the incumbent President implementing
protect the rights of the people
the 1973 Constitution.
with great care and jealousy,
because this is its duty, and also
Of happy relevance on this point is the holding because, in times of great
in Miller vs. Johnson 18 SW 522: popular excitement, it is usually
their last resort, yet it should at
If a set of men, not selected by the same time be careful to
the people according to the overstep the proper bounds of
forms of law, were to formulate its power, as being perhaps
an instrument and declare it the equally dangerous; and
constitution, it would especially where such
undoubtedly be the duty of the momentous results might follow
courts declare its work a nullity. as would be likely in this
This would be revolution, and instance, if the power of the
this the courts of the existing
228 | PART 1 C O N S T I 1 FULLTEXT
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,
229 | PART 1 C O N S T I
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
1 FULLTEXT
 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
230 | PART 1 C O N S T I 1 FULLTEXT
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
231 | PART 1 C O N S T I 1 FULLTEXT
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
232 | PART 1 C O N S T I 1 FULLTEXT
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
233 | PART 1 C O N S T I 1 FULLTEXT
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
234 | PART 1 C O N S T I 1 FULLTEXT
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.
235 | PART 1 C O N S T I 1 FULLTEXT
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
236 | PART 1 C O N S T I 1 FULLTEXT
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
237 | PART 1 C O N S T I 1 FULLTEXT
 Convention was submitted to the people for ratification. Once
legally deemed ratified by the sovereign people, there can be no
fit to propose — debate about the validity of the new
save perhaps Constitution."
what is or may
be insistent with Mr. Justice Fernando, concurring in the same
what is now Plebiscite Cases, cited the foregoing
known, pronouncement in the Del Rosario case, supra,
particularly in and added: "... it seems to me a sufficient
international answer that once convened, the area open for
law, as Jus deliberation to a constitutional convention ..., is
Cogens — not practically limitless" (citing Cf. Koehler vs. Hill,
only because 14 NW 738, 60 Iowa 543 [1883]; Hatch
the Convention Stoneman, 6 P 734, 66 Cal. 632 [1885];
exercised MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
sovereign [1895]; State v. Powell, 27 SO 297, 77 Miss. 543
powers [1900]; Hammond v. Clark, 71 SE 479, 136 Ga.
delegated 313 [1911]; Hamilton v. Vaughan, 179 NW 533,
thereto by the 212 Mich. 31 [1920]; State v. Smith, 138 NE
people — 881, 105 Ohio St. 570 [1922]; Looney vs.
although insofar Leeper, 292 P 365, 145 Okl. 202 [1930]; School
only as the District vs. City of Pontiac, 247 NW 474, 262
determination of Mich. 338 [1933]).
the proposals to
be made and Mr. Justice Barredo, in his concurring opinion in
formulated by said Plebiscite Cases, expressed the view "that
said body is
when the people elected the delegates to the
concerned —
Convention and when the delegates themselves
but also,
were campaigning, such limitation of the scope
because said
of their function and objective was not in their
proposals minds."
cannot be valid
as part of our
Fundamental V
Law unless and
until "approved 1973 CONSTITUTION DULY ADOPTED AND
by the majority PROMULGATED.
of the votes
cast at an Petitioners next claim that the 1971
election which" Constitutional Convention adjourned on
said proposals November 30, 1972 without officially
"are submitted promulgating the said Constitution in Filipino as
to the people for required by Sections 3(1) of Article XV on
their General Provisions of the 1973 Constitution.
ratification," as This claim is without merit because their Annex
provided in "M" is the Filipino version of the 1973
Section 1 of Constitution, like the English version, contains
Article XV of the the certification by President Diosdado
1935 Macapagal of the Constitutional Convention,
Constitution. duly attested by its Secretary, that the proposed
(Pp. 17-18, Constitution, approved on second reading on the
Decision in L- 27th day of November, 1972 and on third
35925, etc.). reading in the Convention's 291st plenary
session on November 29, 1972 and accordingly
This Court likewise enunciated in Del Rosario signed on November 1972 by the delegates
vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA whose signatures are thereunder affixed. It
367) that the Constitutional Convention has the should be recalled that Constitutional
authority to "entirely overhaul the present Convention President Diosdado Macapagal was,
Constitution and propose an entirely new as President of the Republic 1962 to 1965, then
Constitution based on an ideology foreign to the the titular head of the Liberal Party to which four
democratic system ...; because the same will be (4) of the petitioners in L-36165 including their

238 | PART 1 C O N S T I 1 FULLTEXT

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
239 | PART 1 C O N S T I 1 FULLTEXT
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.
240 | PART 1 C O N S T I 1 FULLTEXT
 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
241 | PART 1 C O N S T I 1 FULLTEXT
 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
242 | PART 1 C O N S T I 1 FULLTEXT
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
243 | PART 1 C O N S T I 1 FULLTEXT
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,
244 | PART 1 C O N S T I 1 FULLTEXT
which was approved on June 17, 1967 and constitute a quorum. All actions
superseded Republic Act No. 2370, expanded shall require a majority vote of
the membership of the barrio assembly to these present at the meeting
include citizens who are at least 18 years of age, there being a quorum.
whether literate or not, provided they are also
residents of the barrio for at least 6 months (Sec. Sec. 5. Powers of the barrio
4, R.A. No. 3590). assembly. — The powers of the
barrio assembly shall be as
Sec. 4. The barrio assembly. — follows:
The barrio assembly shall
consist of all persons who are a. To
residents of the barrio for at recommend to
least six months, eighteen years the barrio
of age or over, citizens of the council the
Republic of the Philippines and adoption of
who are duly registered in the measures for
list of barrio assembly the welfare of
members kept by the Barrio the barrio;
Secretary.
b. To decide on
The barrio assembly shall meet the holding of a
at least once a year to hear the plebiscite as
annual report of the barrio provided for in
council concerning the activities Section 6 of this
and finances of the barrio. Act;

It shall meet also at the case of c. To act on

the barrio council or upon budgetary and
written petition of at least One- supplemental
Tenth of the members of the appropriations
barrio assembly. and special tax
ordinances
No meeting of the barrio submitted for its
assembly shall take place approval by the
unless notice is given one week barrio council;
prior to the meeting except in and
matters involving public safety
or security in which case notice d. To hear the
within a reasonable time shall annual report
be sufficient. The barrio captain, council
or in his absence, the concerning the
councilman acting as barrio activities and
captain, or any assembly finances of the
member selected during the assembly.
meeting, shall act as presiding
officer at all meetings of the
Sec. 6. Plebiscite. — A
barrio assembly. The barrio
plebiscite may be held in the
secretary or in his absence, any
barrio when authorized by a
member designated by the
majority vote of the members
presiding officer to act as
present in the barrio assembly,
secretary shall discharge the
there being a quorum, or when
duties of secretary of the barrio
called by at least four members
assembly.
of the barrio council; Provided,
however, That no plebiscite
For the purpose of conducting shall be held until after thirty
business and taking any official days from its approval by either
action in the barrio assembly, it body, and such plebiscite has
is necessary that at least one- been given the widest publicity
fifth of the members of the in the barrio, stating the date,
barrio assembly be present to time, and place thereof, the
245 | PART 1 C O N S T I 1 FULLTEXT
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
246 | PART 1 C O N S T I 1 FULLTEXT
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.
247 | PART 1 C O N S T I 1 FULLTEXT
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
248 | PART 1 C O N S T I 1 FULLTEXT
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
249 | PART 1 C O N S T I 1 FULLTEXT
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.
250 | PART 1 C O N S T I 1 FULLTEXT
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
251 | PART 1 C O N S T I 1 FULLTEXT
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
252 | PART 1 C O N S T I 1 FULLTEXT
objection to such unwise or vague provisions, as in time of war.
heretofore stated, refers to the wisdom of the "An important
aforesaid provisions, which issue is not for this incident to a
Court to decide; otherwise We will be conduct of war
substituting Our judgment for the judgment of is the adoption
the Constitutional Convention and in effect measures by
acting as a constituent assembly. the military
command not
VI only to repel
and defeat the
enemies but to
PRESIDENT AS COMMANDER IN CHIEF
seize and
EXERCISES
subject to
LEGISLATIVE POWERS DURING MARTIAL
disciplinary
LAW.
measures those
enemies who in
The position of the respondent public officers their attempt to
that undermartial law, the President as thwart or
Commander-in-Chief is vested with legislative impede our
powers, is sustained by the ruling in the 1949 military effort
case of Kuroda vs. Jalandoni, et al. (83 Phil. have violated
171, 177-178) which reiterates the 1945 case the law of war."
of Yamashita vs. Styer (75 Phil. 563, 571-72). (Ex parte
The trial of General Kuroda was after the Quirin, 317
surrender of Japan on October 2, 1945 (23 U.S., 1; 63 Sup.
Encyc. Brit. 1969 ed., p. 799) and hence no Ct., 2.) Indeed,
more martial law in the Philippines. the power to
create a military
... Consequently, in the commission for
promulgation and enforcement the trial and
of Executive Order No. 68, the punishment of
President of the Philippines has war criminals is
acted in conformity with the an aspect of
generally accepted principles waging war.
and policies of international law And, in the
which are part of our language of a
Constitution. writer, a military
commission
The promulgation of said "has jurisdiction
executive order is an exercise so long as the
by the President of his powers technical state
as Commander in Chief of all of war
our armed forces, as upheld by continues. This
this Court in the case includes the
of Yamashita vs. Styver (L-129, period of an
42 Off. Gaz., 664) when we said armistice, or
— military
occupation, up
"War is not to the effective
ended simply date of treaty of
because peace, and may
hostilities have extend beyond,
ceased. After by treaty
cessation of agreement."
armed (Cowles, Trial of
hostilities, War Criminals
incidents of war by Military
may remain Tribunals,
pending which American Bar
should be Association
disposed of as
253 | PART 1 C O N S T I 1 FULLTEXT
 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
254 | PART 1 C O N S T I
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
1 FULLTEXT
 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
255 | PART 1 C O N S T I 1 FULLTEXT
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
256 | PART 1 C O N S T I 1 FULLTEXT
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 corpuswithout 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
257 | PART 1 C O N S T I 1 FULLTEXT
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
258 | PART 1 C O N S T I 1 FULLTEXT
not achieved, the 1973 Constitution must be
deemed to be valid, in force and operative.
X late that he was being deceived by his
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
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.
259 | PART 1 C O N S T I 1 FULLTEXT
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 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
260 | PART 1 C O N S T I 1 FULLTEXT
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
261 | PART 1 C O N S T I 1 FULLTEXT
 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;
262 | PART 1 C O N S T I 1 FULLTEXT
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,
1973 , I held the view that this issue could be
1
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. The 2
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. It is a
3
settled doctrine that every officer under a
constitutional government must act according to
263 | PART 1 C O N S T I 1 FULLTEXT
law and subject to its restrictions, and every On the question now of whether or not the
departure therefrom, or disregard thereof, must Constitution proposed by the 1971 Constitutional
subject him to the restraining and controlling Convention has been validly ratified, I am
power of the people, acting through the agency reproducing herein pertinent portions of my
of the judiciary. It must be remembered that the dissenting opinion in the plebiscite cases:
people act through the courts, as well as through
the executive or the legislature. One department The ratification of the
is just as representative as the other, and Constitution proposed by the
judiciary is the department which is charged with 1971 Constitutional Convention
the special duty of determining the limitations must be done in accordance
which the law places upon all official actions . In
4
with the provisions of Section 1,
the case of Gonzales v. Commission on Article XV of the 1935
Elections , this Court ruled that the issue as to
5
Constitution of the Philippines,
whether or not a resolution of Congress acting which reads:
as a constituent assembly violates the
Constitution is not a political question and is
"Section 1. The
therefore subject to judicial review. In the case
Congress in
of Avelino v. Cuenco , this Court held that the
6
joint session
exception to the rule that courts will not interfere
assembled by a
with a political question affecting another vote of three
department is when such political question fourths of all the
involves an issue as to the construction and
Members of the
interpretation of the provision of the constitution.
Senate and of
And so, it has been held that the question of
the House of
whether a constitution shall be amended or not Representatives
is a political question which is not in the power of voting
the court to decide, but whether or not the
separately, may
constitution has been legally amended is a
propose
justiciable question.7
amendments to
the Constitution
My study on the subject of whether a question or call a
before the court is political or judicial, based on convention for
decisions of the courts in the United States — that purpose.
where, after all, our constitutional system has Such
been patterned to a large extent — made me amendments
arrive at the considered view that it is in the shall be valid as
power of this Court, as the ultimate interpreter of part of this
the Constitution, to determine the validity of the Constitution
proposal, the submission, and the ratification of when approved
any change in the Constitution. Ratification or by a majority of
non-ratification of a constitutional amendment is the votes cast
a vital element in the procedure to amend the at an election at
constitution, and I believe that the Court can which the
inquire into, and decide on, the question of amendments
whether or not an amendment to the are submitted to
constitution, as in the present cases, has been the people for
ratified in accordance with the requirements their
prescribed in the Constitution that was ratification."
amended. And so, in the cases now before Us, I
believe that the question of whether or not the
It is in consonance with the
Constitution proposed by the 1971 Constitutional
abovequoted provision of the
Convention had been validly ratified or not is a
1935 Constitution that on March
justiciable question. 16, 1967, the Congress of the
Philippines Resolution No. 2
The Chief Justice, in his opinion, has discussed calling a convention to propose
lengthily the subject on whether or not, the amendments to the Constitution
cases, before Us involve a political, or a judicial, of the Philippines. Sec. 7 of said
question. I fully concur with his conclusion that Resolution No. 2 reads as
the question involved in these cases is follows:
justiciable.

264 | PART 1 C O N S T I 1 FULLTEXT

 "Section 7. The as in the case
amendments of a
proposed by the revolutionary
Convention convention
shall be valid which drafts the
and considered first Constitution
part of the of an entirely
Constitution new
when approved government
by a majority of born of either a
the votes cast in war of liberation
an election at from a mother
which they are country or of
submitted to the revolution
people for their against an
ratification existing
pursuant to government or
Article XV of the of a bloodless
Constitution. seizure of
power a la coup
It follows that from the very d'etat. As to
resolution of the Congress of such kind of
the Philippines which called for conventions, it
the 1971 Constitutional is absolutely
Convention, there was a clear true that the
mandate that the amendments convention is
proposed by the 1971 completely
Convention, in order to be valid without restraint
and considered part of the and omnipotent
Constitution, must be approved all wise, and it
by majority of the votes cast in as to such
an election at which they are conventions
submitted to the people for the that the remarks
ratification as provided in the of Delegate
Constitution. Manuel Roxas
of the
This Court, in the case Constitutional
of Tolentino vs. Commission Convention of
Elections, L-35140, October 16, 1934 quoted by
Senator Pelaez
1971 (41 SCRA 715), speaking
refer. No
through Mr. Justice Barredo,
amount of
said:
rationalization
can belie the
"The fact that the
Constitutional current
Convention of convention
1971, as any came into being
other only because it
convention of was called by a
the same resolution of a
nature, owes its joint session of
existence and Congress acting
all its authority as a constituent
and power from assembly by
the existing authority of
Constitution of Section 1,
the Philippines. Article XV of the
This Convention present
has not been Constitution ...
called by the ."
people directly
265 | PART 1 C O N S T I 1 FULLTEXT
 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
266 | PART 1 C O N S T I
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
1 FULLTEXT
the past, in implementing the power of the
constitutional provision requiring people. In
the holding, of an election to common
ratify or reject an amendment to parlance, an
the Constitution, has not been election is the
followed in the case of the act of casting
Constitution proposed by the and receiving
1971 Constitutional Convention. the ballots,
counting them,
It is my view that the President and making the
of the Philippines cannot by return."
decree order the ratification of (Hontiveros vs.
the proposed 1972 Constitution Altavas, 24 Phil.
thru a voting in the barangays 632, 637).
and make said result the basis
for proclaiming the ratification of "Election"
the proposed constitution. It is implies a choice
very clear, to me, that by an electoral
Proclamation No. 1102 was body at the time
issued in complete disregard or and
in violation, of the provisions of substantially in
Section 1 of Article X of the the manner and
1935 Constitution. with the
safeguards
Proclamation No. 1102 provided by law
mentions, furthermore, that on with respect to
the question as to whether or some question
not the people would still like a or issue. (Leffel
plebiscite to be called to ratify v. Brown, Com.
the new Constitution, P1., 159 N.E.
14,298,814 members of the 2d 807, 808
barangays answered that there cited in 29
was no need for a plebiscite but C.J.S. 13 at
that the vote of the barangays footnote 6.5).
should be considered a vote in a
plebiscite. It would thus appear "... the statutory
that the barangays assumed the method
power to determine whether a whereby qualifie
plebiscite as ordained in the d voters or
Constitution be held or not. electors pass
Indeed, the provision of Section on various
1, Article XV of the Constitution public matters
was completely disregarded. submitted to
them — the
The affirmative votes cast in the election of
barangays are not the votes officers,
contemplated in Section 1 of national, state,
Article XV of the 1935 county,
Constitution. The votes township — the
contemplated in said passing on
constitutional provision are various other
votes obtained through the questions
election processes as provided submitted for
by law. their
determination."
(29 C.J.S. 13,
"An election is
citing Iowa-
the embodiment
of the popular Illinois Gas &
will, the Elec. Co. v. City
of Bettendorf,
expression of
the sovereign
267 | PART 1 C O N S T I 1 FULLTEXT
 41 N.W. 2d 1, 5, once without first applying for
241 Iowa 358). cancellation of his previous
registration." (Emphasis
"Election" is supplied). (Please see also
expression of Sections 100-102, Election
choice Code of 1971, R.A. No. 6388)
by voters of
body politic. It is stated in Proclamation No.
(Ginsburg v. 1102 that the voting was done
Giles, 72 S.W. by the members of citizens
2d 438, 254 Ky. assemblies who are 15 years of
720, in Words age or over. Under the provision
and Phrases, of Section I of Article V of the
Permanent 1935 Constitution, the age
Edition, p. 234). requirement to be a qualified
voter is 21 years or over.
"The right to
vote may be But what is more noteworthy is
exercised only the fact that the voting in the
on compliance barangays, except in very few
with such instances, was done by the
statutory raising of hands by the persons
requirements as indiscriminately gathered to
have been set participate in the voting, where
by the even children below 15 years of
legislature." age were included. This is a
(People ex rel. matter of common observation,
Rago v. Lipsky, or of common knowledge, which
63 N.E. 2d 642, the Court may take judicial
327 III. App. 63; notice of. To consider the votes
Rothfels v. in the barangays as expressive
Southworth, of the popular will and use them
356 P. 2d 612, as the basis in declaring
11 Utah 2d 169 whether a Constitution is ratified
in 29 C.J.S. 38). or rejected is to resort to a
(Emphasis voting by demonstrations, which
supplied). is would mean the rule of the
crowd, which is only one degree
In this connection I herein quote higher than the rule by the mob.
the pertinent provisions of the Certainly, so important a
Election Code of 1971: question as to whether the
Constitution, which is the
"Sec. 2. Applicability of this Act. supreme law of the land, should
be ratified or not, must not be
— All elections of public officers
decided by simply gathering
except barrio officials and
plebiscites shall be conducted in people and asking them to raise
the manner provided by this their hands in answer to the
question of whether the vote for
Code."
or against a proposed
Constitution. The election as
"Sec 99. Necessity of provided by law should be
registration to be entitled to strictly observed in determining
vote. — In order that a qualified the will of the sovereign people
voter may vote in any regular or in a democracy. In our Republic,
special election or in any the will of the people must be
plebiscite, he must be registered expressed through the ballot in
in the permanent list of voters a manner that is provided by
for the city, municipality or law.
municipal district in which he
resides: Provided, that no
It is said that in a democracy,
person shall register more than
the will of the people is the
268 | PART 1 C O N S T I 1 FULLTEXT
supreme law. Indeed, the cases, as
people are sovereign, but the representing
will of the people must be those who have
expressed in a manner as the not the right to
law and the demands a well- participate in
ordered society require. The the ballot. If a
rule of law must prevail even constitution
over the apparent will of the should be
majority of the people, if that will abrogated and
had not been expressed, or a new one
obtained, in accordance with the adopted, by the
law. Under the rule of law, whole mass of
public questions must be people in a
decided in accordance with the state acting
Constitution and the law. This is through
specially true in the case of representatives
adoption of a constitution or in not chosen by
the ratification of an amendment the "people" in
to the Constitution. political sense
of the term, but
The following citations are, to by the general
me, very relevant in the effort to body of the
determine whether the proposed populace, the
Constitution of 1972 had been movement
validly ratified, or not: would be extra-
legal." (BIack's
Constitutional
"When it is said
Law, Second
that "the
Edition, pp. 47-
people" have
48).
the right to alter
or amend the
constitution, it "The theory of
must not be our political
understood that system is that
term the ultimate
necessarily sovereignty is in
includes all the the people, from
inhabitants of whom springs
the state. Since all legitimate
the question of authority. The
the adoption or people of the
rejection of a Union created a
proposed new national
constitution or constitution,
constitutional and conferred
amendment upon it powers
must be of sovereignty
answered a on certain
vote, the subjects, and
determination of the people of
it rests with each State
those who, by created a State
existing government, to
constitution, are exercise the
accorded the remaining
right of suffrage. powers of
But the qualified sovereignty so
electors must far as they were
be understood disposed to
in this, as in allow them to
many other be exercised at
269 | PART 1 C O N S T I 1 FULLTEXT
all. By the by the
constitution pronouncement
which they 60 years ago of
establish, they broad,
not only tie up wholesome
the hands of constitutional
their official principles
agencies, but in Collier v.
their own hands Frierson, supra,
as well; and as quoted in the
neither the original opinion,
officers of the ante. The
State, nor the people
whole people as themselves are
an aggregate bound by the
body, are at Constitution;
liberty to take and, being so
action in bound, are
opposition to powerless,
this whatever their
fundamental numbers, to
law." (Cooley's change or
Constitutional thwart its
Limitations, 8th mandates,
Edition, Vol. I, except through
p. 81 cited in the peaceful
Graham v. means of a
Jones, 3 So. 2d. constitutional
761, 782). convention, or
of an
"The theory that amendment
a favorable vote according to the
by the mode therein
electorate, prescribed, or
however through the
unanimous, on exertion of the
a proposal to original right of
amend a revolution. "The
constitution, Constitution
may cure, may be set
render aside by
innocuous, all revolution, but it
or any can only be
antecedent amended in the
failures to way it
observe provides," said
commands of Hobson, C.J., in
that Constitution McCreary v.
in respect of the Speer, 156 Ky.
formulation or 783, 791, 162
submission of S.W. 99, 103.
proposed (Johnson vs.
amendments Craft, et al., 87
thereto, does So. 375, 385,
not prevail in 387, On
Alabama, where Rehearing).
the doctrine of
the stated "The fact that a
theory was majority voted
denied, in for the
obvious effect, amendment,
270 | PART 1 C O N S T I 1 FULLTEXT
unless the vote observance of
was taken as every
provided by the substantial
Constitution, is requirement is
not sufficient to essential to the
make a change validity of the
in that proposed
instrument. amendment.
Whether a These
proposed provisions are
amendment has as binding on
been legally the people as
adopted is a on the
judicial legislature, and
question, for the the former are
court must powerless by
uphold and vote of
enforce the acceptance to
Constitution as give legal
written until it is sanction to an
amended in the amendment the
way which it submission of
provides which was
for." Wood v. made in
Tooker, 15 disregard of the
Mont. 8, 37 Pac limitations
840, 25 L.R.A. contained in the
560; McConaug constitution."
hty v. State, 106 (16 C.J.S. 35-
Minn. 409, 119 36. cited in
N.W. Graham v.
408; Oakland Jones, 3 So. 2d
Paving 761, 782).
Company v.
Hilton, 69 Cal. "It is said that
499, 11 Pac. chaos and
3; Utter v. confusion in the
Mosely, 16 government
Idaho 274, 100 affairs of the
Pac. 1958, 133 State will result
Am. St. Rep. from the Court's
94, 18 Ann. action in
Cas. 723. declaring the
(McCreary v. proposed
Speer, 162 constitutional
S.W. 99, 104). amendment
void. This
"Provisions of a statement is
constitution grossly and
regulating its manifestly
own inaccurate. If
amendment, ... confusion and
are not merely chaos should
directory, but ensue, it will not
are mandatory; be due to the
and a strict action of the
observance of Court but will be
every the result of the
substantial failure of the
mandatory; and drafters joint
a strict resolution to
271 | PART 1 C O N S T I 1 FULLTEXT
 observe, follow requirements of the law were
and obey the not complied with. In the case
plain essential of Monsale v. Nico, 83 Phil. 758,
provisions of Monsale and Nico were both
the Constitution. candidates for the office of
Furthermore, to Municipal Mayor of Miagao,
say that, the Iloilo, in the elections of
Court November 11, 1947. Monsale
disregards its had duly filed his certificate of
sworn duty to candidacy before the expiration
enforce the of the period for the filing of the
Constitution, same. However, on October 10,
chaos and 1947, after the period for the
confusion will filing of the certificate of
result, is an candidacy, Monsale withdrew
inherently weak his certificate of candidacy. But
argument in on November 7, 1947 Monsale
favor of the attempted to revive his
alleged certificate of candidacy by
constitutionality withdrawing the withdrawal of
of the proposed certificate of candidacy. The
amendment. It Commission on Elections,
is obvious that, November 8, 1947, ruled that
if the Court Monsale could no longer be a
were to candidate. Monsale
countenance nevertheless proceeded with his
the violations of candidacy. The boards of
the sacramental inspectors in Miagao, however,
provisions did not count the votes cast for
Constitution, Monsale upon the ground that
those who the votes cast for him were stray
would thereafter votes, because he was
desire to violate considered as having no
it disregard its certificate of candidacy. On the
clear mandatory other hand, the boards of
provisions inspectors credited Nico with
would resort to 2,291 votes, and Nico was
the scheme of proclaimed elected. Monsale
involving and filed a protest against the
confusing the election of Nico in the Court of
affairs of the First Instance of Iloilo. In the
State then count of the ballots during the
simply tell the proceedings in the trial court, it
Court that it was appeared that Monsale had
powerless to obtained 2,877 votes while Nico
exercise one of obtained 2,276 votes, or a
its primary margin of 601 votes in favor of
functions by Monsale. The Court of First
rendering the Instance of Iloilo decided the
proper decree election protest in favor of
to make the Monsale. Upon appeal by Nico,
Constitution this Court reversed the decision
effective." of the lower court. This Court
(Graham v. declared that because Monsale
Jones, 3 So. 2d. withdrew his certificate of
761, 793-794). candidacy, his attempt to revive
it by withdrawing his withdrawal
In our jurisprudence I find an of his certificate of candidacy
instance where this Court did did not restore the effectiveness
not allow the will of the majority of his certificate of candidacy,
to prevail, because the and this Court declared Nico the

272 | PART 1 C O N S T I 1 FULLTEXT

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." Thus, in Section
8
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
273 | PART 1 C O N S T I 1 FULLTEXT
under the Constitution. In the case
of Garchitorena vs. Crescini , this Court,
9
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, this Court, speaking through Mr.
10
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, this Court
11
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.
274 | PART 1 C O N S T I 1 FULLTEXT
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
275 | PART 1 C O N S T I 1 FULLTEXT
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
276 | PART 1 C O N S T I 1 FULLTEXT
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." Strict accuracy would of course
1 For the assent it gives to what has been done
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, it
2 by a blind determination to adhere to the status
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." That is why
3
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." Nonetheless, as was stressed by
4
Professors Black and Murphy, a Supreme
5 6
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.
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,
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
277 | PART 1 C O N S T I 1 FULLTEXT
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. Since the
7
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, Tolentino and Planas cases speak
8 9 10
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, "cannot be
11
treated as unrelated acts, but as succeeding
steps in a single endeavor." Once an aspect
12
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. Thus: "The term has been made
13
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." The view
14
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." After a thorough study of
15
278 | PART 1 C O N S T I 1 FULLTEXT
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." Nor was
16
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." What appears
17
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 of Yale and Professor Freund of
18 19
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, decided in 1937: "If it is ever
21
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." The hope of course
22
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 to Planas v. Commission on
23
Elections. It should continue to exercise its
24
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
279 | PART 1 C O N S T I 1 FULLTEXT
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." He went on to
25
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." His view was precisely the
26
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." More than that, he took pains
27
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.' " Nor is
28
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.' " Professor Konefsky, like Dean
29
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." This is not to deny that there are those
31
who would place the blame or the credit,
depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. Curtis 32
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." At 33
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 ... ." The above
34
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
280 | PART 1 C O N S T I 1 FULLTEXT
only could be but could become current as the
most understandable comprehensive summary
of American Constitutional law?" It is no
35
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." Let me
36
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, decided in 1962 and Powell v.
37
MacCormack, in 1969, both noted in the
38
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." For him, the judiciary "ought not to
40
enter this political thicket." Baker has since then
been followed; it has spawned a host of
cases. Powell, on the question of the power of
41
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, It does look then that even in the
42
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." As 43
for Professor Bickel, it has been said that as
counsel for the New York Times in the famous
Vietnam papers case, he was less than
44
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. It has brought forth a
45
plethora of law review articles, the reaction
ranging from guarded conformity to caustic
criticism. There was, to be sure, no clear call to
46
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, if my reading of the events and the
48
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
281 | PART 1 C O N S T I 1 FULLTEXT
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, and they are not few in
49
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, submitting to the Filipino
51
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." Then came the statute, calling
52 53
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, reducing the term of the President
54
to four years but allowing his re-election with the
limitation that he cannot serve more than eight
consecutive years, and creating an
55
independent Commission on Elections. Again, 56
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." The approval of the present parity
57
amendment was by virtue of a Republic
Act which specifically made applicable the then
58
Election Code. There is a similar provision in
59
the
legislation, which in cotemplation of the 1971
60
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. That is the consistent course of
61
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, then this Court cannot refuse to
62
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." If the origins of the democratic
63
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." From
64
them, as Corwin did stress, emanate "the
highest possible embodiment of human
will," which is supreme and must be obeyed.
65
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
282 | PART 1 C O N S T I 1 FULLTEXT
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, decided in 1892, it was set forth in
66
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." In Taylor v. Commonwealth, a
67 68
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
283 | PART 1 C O N S T I 1 FULLTEXT
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. Once 70
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
284 | PART 1 C O N S T I 1 FULLTEXT
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." Moreover what made it
71
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 peoplefor 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 aplebiscite 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
285 | PART 1 C O N S T I 1 FULLTEXT
 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: and Tolentino ca
5 6
ses.
— In the Tolentino case, this
Court emphasized "that the
provisions of Section 1 of Article
286 | PART 1 C O N S T I
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" and under the
9
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
1 FULLTEXT
 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, wherein the Court in its Resolution of
11
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
287 | PART 1 C O N S T I 1 FULLTEXT
"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
288 | PART 1 C O N S T I 1 FULLTEXT
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" in the exercise of
18
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", participated
19
in only by qualified and
duly registered voters twenty-one years of age
or over and duly supervised by the
20
Commission on Elections, in accordance with
21
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", that the
22
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", and that the Comelec is
23
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 the U.S. Supreme
25
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, "(T)he Constitution sets forth in
26
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
289 | PART 1 C O N S T I 1 FULLTEXT
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 the "climactic phrase," "we must
27 28
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." This enduring concept to my
29
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
290 | PART 1 C O N S T I 1 FULLTEXT
 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. Comelec , thus:
33
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 basisfor
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 in a 35
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
291 | PART 1 C O N S T I 1 FULLTEXT
 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
292 | PART 1 C O N S T I 1 FULLTEXT
 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 thepeople had said, 'This
Constitution may be amended,
but it is our will that the
amendment must
beproposed 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 thepeople 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
293 | PART 1 C O N S T I 1 FULLTEXT
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
apolitical 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
294 | PART 1 C O N S T I
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
1 FULLTEXT
 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 with a constitutional
43
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
295 | PART 1 C O N S T I 1 FULLTEXT
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 comply with the suffrage qualifications
49
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
296 | PART 1 C O N S T I 1 FULLTEXT
1. Since it appears on the face of Proclamation 5. Finally, as to respondents' argument that the
1102 that the mandatory requirements under the President issued Proclamation 1102 "as "agent"
above-cited constitutional articles have not been of the Constitutional Convention" under55

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 has been called or held,
51
there cannot be said to have been a valid
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

ratification.
The minutes of November 22, 1972, of the
2. Petitioners raised serious questions as to the Convention, however, do not at all support this
veracity and genuineness of the reports or contention. On the contrary, the said minutes
certificates of results purportedly showing fully show that the Convention's proposal and
unaccountable discrepancies in seven figures in "agency" was that the President issue a decree
just five provinces between the reports as
52
precisely calling a plebiscite for the ratification of
certified by the Department of Local the proposed new Constitution on an appropriate
Governments and the reports as directly date, under the charge of the Comelec, and with
submitted by the provincial and city executives, a reasonable period for an information
which latter reports respondents disclaimed inter campaign, as follows:
alia as not final and complete or as not
signed; whether the reported votes of approval
53
12. Upon recognition by the
of the proposed Constitution conditioned upon Chair, Delegate Duavit moved
the non-convening of the interim National for the approval of the
Assembly provided in Article XVII, section 1 resolution, the resolution portion
thereof, may be considered as valid; the
54
of which read as follows:
allegedly huge and uniform votes reported; and
many others.
"RESOLVED,
AS IT IS
3. These questions only serve to justify and HEREBY
show the basic validity of the universal principle RESOLVED,
governing written constitutions that proposed that the 1971
amendments thereto or in replacement thereof Constitutional
may be ratified only in the particular mode or Convention
manner prescribed therein by the people. Under propose to
Article XV, section 1 of our Constitution, President
amendments thereto may be ratified only in Ferdinand E.
the one way therein provided, i.e. in an election Marcos that a
or plebiscite held in accordance with law and decree be
duly supervised by the Commission on issued calling a
Elections, and which is participated in only by plebiscite for
qualified and duly registered voters. In this the ratification
manner, the safeguards provided by the election of the proposed
code generally assure the true ascertainment of New
the results of the vote and interested parties Constitution on
would have an opportunity to thresh out properly such
before the Comelec all such questions in pre- appropriate
proclamation proceedings. date as he shall
determine and
4. At any rate, unless respondents seriously providing for the
intend to question the very statements and necessary
pronouncements in Proclamation 1102 itself funds therefor,
which shows on its face, as already stated, that and that copies
the mandatory amending process required by of this
the (1935) Constitution was not observed, the resolution as
cases at bar need not reach the stage of approved in
answering the host of questions, raised by plenary session
petitioners against the procedure observed by be transmitted
the Citizens Assemblies and the reported to the President
referendum results — since the purported of the
ratification is rendered nugatory by virtue of such Philippines and
non-observance. the Commission
297 | PART 1 C O N S T I 1 FULLTEXT
 on Elections for
implementation.
" the new Constitution would not
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
298 | PART 1 C O N S T I
communication to the President
informing him of the adoption of
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
theplebiscite 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.
1 FULLTEXT
 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.
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 P
concentration of governmental power. "The r
more complete the separation of powers oin a
m yet
constitutional system, the more difficult, and
the more necessary" according to Rossiter, u "will
l of
be their fusion in time of crisis... The power
g
the state in crisis must not only be concentrated
a
and expanded, it must be freed from the normal
t
system of constitutional and legal limitations.
e
One of the basic features of emergency powers
is the release of the government from thed
:
paralysis of constitutional restraints" (Rossiter,
Constitutional Dictatorship, p. 290).
J
It is clearly recognized that in moments ofu peril
the effective action of the government is n
channeled through the person of the Chief e
Executive. "Energy in the executive," according
to Hamilton, "is essential to the protection4 of the
community against foreign attacks ... to the,
protection of property against those irregular and
high-handed combinations which sometimes 1
interrupt the ordinary course of justice; to9the
security of liberty against the enterprises 7and
3
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
299 | PART 1 C O N S T I 1 FULLTEXT
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-
300 | PART 1 C O N S T I 1 FULLTEXT
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
301 | PART 1 C O N S T I 1 FULLTEXT
 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. The 1973 Constitution is not a
1
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. This is not true with our Constitution. In
2
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
302 | PART 1 C O N S T I 1 FULLTEXT
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.
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
4
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"
303 | PART 1 C O N S T I 1 FULLTEXT
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." Such change in
5
the organic law relates to the existence of a prior
304 | PART 1 C O N S T I 1 FULLTEXT
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." It involves in
6
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. ... .
305 | PART 1 C O N S T I 1 FULLTEXT
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
306 | PART 1 C O N S T I 1 FULLTEXT
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
307 | PART 1 C O N S T I 1 FULLTEXT
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
308 | PART 1 C O N S T I 1 FULLTEXT
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,
309 | PART 1 C O N S T I 1 FULLTEXT
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
310 | PART 1 C O N S T I 1 FULLTEXT
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,
311 | PART 1 C O N S T I 1 FULLTEXT
published in each county, and if a majority of the 9 Namely, Jovito R. Salonga,
electors shall ratify the same, such amendment Ramon V. Mitra, Jr. and Eva
or amendments shall become a part of this Estrada-Kalaw.
constitution.
10 Napoleon V. Dilag, et al. v.
Sec. 2. How voted for. If two or more Executive Secretary, et al.
amendments are proposed, they shall be
submitted in such manner that the electors shall 11 Araneta v. Dinglasan, 84
vote for or against each of them separately. Phil. 431, 437-438. See, also,
Gonzales v. Commission on
Sec. 3. Constitutional convention; provision for. Elections,
Whenever two-thirds of the members elected to L-28196 & L-28224, Nov. 9,
each branch of the legislature shall deem it 1967. Emphasis ours.
necessary to call a convention
to revise or amend this constitution, they shall 12 Art. VI, sec. 20(1),
recommend to the electors to vote at the next Constitution.
general election for or against a convention, and
if a majority of all the electors voting at such 13 Art. VII, sec. 10(7),
election shall have voted for a convention, the Constitution.
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 14 Emphasis ours.
than double that of the most numerous branch of
the legislature. 15 See page 4, last paragraph,
of his Comment dated Feb. 6,
Sec. 4. New constitution. Any constitution 1973.
adopted by such convention shall have no
validity until it has been submitted to and 16 In re Opinion of Justices, 107
adopted by the people. Atl. 673, 5 A.L.R. 1412;
Crawford v. Gilchrist, 59 So.
Footnotes Rep. 963; McAdams v. Henley,
273 S.W. 355; Egbert v. City of
Dunseith, 74 N.D. 1, 168 A.L.R.
1 Justices Makalintal, Castro, 621, 24 N.W. 2d. 907; State ex
Barredo, Makasiar, Antonio and
rel. Landis, Atty. Gen. v.
Esguerra.
Thompson, 163 So. Rep. 270;
St. Louis Brewing Association v.
2 Chief Justice Concepcion and Moore, 64 L. ed. 947; Ellingham
Justices Fernando and v. Dye, 99 N.E. Rep. 1, 18;
Teehankee. Johnson v. Craft, 87 So. Rep.
375.
3 Justice Zaldivar.
17 Mun. of Malabang v. Benito,
4 Case G.R. No. L-36164. L-28113, Mar. 28, 1969;
NAWASA v. Piguing, et al., L-
5 Case G.R. No. L-36236. 35573, Oct. 11, 1968;
Fernandez v. P. Cuerva & Co.,
6 Case G.R. No. L-36293. L-21114, Nov. 25, 1967;
Gonzales v. Commission on
Elections, L-28224, Nov. 29,
7 Who withdrew as petitioner on 1967; Bara Lidasan v.
January 25, 1973. COMELEC, L-28089, Oct. 25,
1967; Mun. of San Juan v.
8 Originally, Gerardo Roxas, NAWASA, L-22047, Aug. 31,
Ambrosio Padilla and Salvador 1967; Mun. of San Joaquin v.
H. Laurel. Now, after the Siva, L-19870, Mar. 18, 1967;
withdrawal of the latter, the first Pelayo v. Auditor General, L-
two (2) only. 23825, Dec. 24, 1965;
Philippine Constitution
Association v. Gimenez, L-
23326, Dec. 18, 1965; Mun. of
312 | PART 1 C O N S T I 1 FULLTEXT
La Carlota v. NAWASA, L-
20232, Sept. 30, 1964; Guevara
v. Inocentes, L-25577, Mar. 15,
1966; Gillera v. Fernandez, L-
20741, Jan. 31, 1964; Siguiente
v. Secretary of Justice, L-20370,
Nov. 29, 1963; Mun. of
Naguilian v. NAWASA, L-18540,
Nov. 29, 1963; Herrera v. Liwag,
L-20079, Sept. 30, 1963; Aytona
v. Castillo, L-19313, Jan. 19,
1962; La Mallorca, etc. v.
Ramos, et al., L-15476, Sept.
19, 1961; Tan v. De Leon, et al.,
L-15254, Sept. 16, 1961;
Macias v. Commission on
Elections, L-18684, Sept. 14,
1961; Philippine Tobacco Flue-
Curing & Redrying Corp. v.
Sabugo, et al., L-16017, Aug.
31, 1961; Miller v. Mardo, L-
15138, July 31, 1961; Cu Bu
Liong v. Estrella, et al., L-14212,
July 31, 1961; Pampanga Sugar
Development Co., Inc. v.
Fuentes, et al., L-14738, July
31, 1961; Earnshaw Docks &
Honolulu Iron Works v. Mardo,
et al., L-14759, July 31, 1961;
Liwanag v. Central Azucarera
Don Pedro, L-15372, July 31,
1961; Lecura v. Regional Office
No. 3, etc., L-15582, July 31,
1961; Pitogo v. Sen Bee
Trading Co., et al., L-15693,
July 31, 1961; Pascual v. Sec.
of Public Works and
Communications, L-10405, Dec.
29, 1960; Corominas, Jr. v.
Labor Standards Commission,
L-14837, June 30, 1961; City of
Baguio v. NAWASA, L-12032,
Aug. 31, 1959; City of Cebu v.
NAWASA, L-12892, April
20,1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490,
Rutter v. Esteban, 93 Phil. 68;
Araneta v. Dinglasan, 84 Phil.
368; Borromeo v. Mariano, 41
Phil. 322.
18 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..
19 L-33964, Teodosio Lansang,
et al. v. Brigadier-General
Eduardo M. Garcia; L-33965,
Rogelio V. Arienda v. Secretary
313 | PART 1 C O N S T I
of National Defense, et al.; L-
33973, Luzvimindo David v.
Gen. Eduardo Garcia, et al.; L-
33962, Felicidad G. Prudente v.
General Manuel Yan, et al.; L-
34004, Domingo E. de Lara v.
Brigadier-General Eduardo M.
Garcia; L-34013, Reynaldo
Rimando v. Brig. Gen. Eduardo
M. Garcia; L-34039, Carlos C.
Rabago v. Brig. Gen. Eduardo
Garcia, et al.; L-34265, Antolin
Oreta, Jr. v. Gen. Eduardo
Garcia, et al.; and L-34339,
Gary B. Olivar, et al. v. Gen.
Eduardo Garcia, et al.
20 5 Phil. 87.
21 91 Phil. 882.
22 G.R. Nos. L-28196 and L-
28224, Nov. 9, 1967.
23 78 Phil. 1.
24 Supra.
25 In re McConaughy, 119 N.W.
408, 417.
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
28 92 Ky. 589,18 S.W. 522,
523.
29 Citing Koehler v. Hill, 60
Iowa 543, 14 N.W. Rep. 738,
and 15 N.W. Rep. 609; State v.
Tufly, 19 Nev. 391, 12 Pac.
Rep. 835.
30 Angara v. Electoral
Commission, 63 Phil. 139, 157.
Emphasis ours.
31 12 L. ed. 581 (1849).
32 Luther v. Borden, supra, p.
598. Emphasis ours.
33 In re McConaughy, supra, p.
416. Emphasis ours.
1 FULLTEXT
34 369 U.S. 186, 7 L. ed. 2d.
663, 82 S. Ct. 691 (March 26,
1962).
35 395 U.S. 486, 23 L. ed. 2d.
491, 89 S. Ct. 1944 (1969).
36 In re McConaughy, 119 N.W.
408, 415. Emphasis ours. The
observation as to the uniformity
of authorities on the matter has
been reiterated in Winget v.
Holm, 244 N.W. 329, 332.
37 Baker v. Carr, 369 U.S. 186,
7 L. ed. 2d 663, 686, 82 S. Ct.
691.
38 See p. 5 of the Petition.
39 Emphasis ours.
40 The Framing of the
Philippine Constitution, by
Aruego, Vol. I p. 215.
41 The Framing of the
Philippine Constitution, by
Aruego, Vol. I pp. 215, 221,
227-228.
42 Ibid., pp. 222-224.
43 Id., pp. 224-227.
44 SEC. 431. Qualifications
prescribed for voters. — Every
male person who is not a citizen
or subject of a foreign power,
twenty-one years of age or over,
who shall have been a resident
of the Philippines for one year
and of the municipality in which
he shall offer to vote for six
months next preceding the day
of voting is entitled to vote in all
elections if comprised within
either of the following three
classes:
"(a) Those who, under the laws
in force in the Philippine Islands
upon the twenty-eighth day of
August, nineteen hundred and
sixteen, were legal voters and
had exercised the right of
suffrage.
314 | PART 1 C O N S T I
"(b) Those who own real
property to the value of five
hundred pesos, declared in their
name for taxation purposes for a
period not less than one year
prior to the date of the election,
or who annually pay thirty pesos
or more of the established
taxes.
"(c) Those who are able to read
and write either Spanish,
English, or a native language.
"SEC. 432. Disqualifications. —
The following persons shall be
disqualified from voting:
"(a) Any person who, since the
thirteenth day of August,
eighteen hundred and ninety-
eight, has been sentenced by
final judgment to suffer not less
than eighteen months of
imprisonment, such disability
not having been removed by
plenary pardon.
"(b) Any person who has
violated an oath of allegiance
taken by him to the United
States.
"(c) Insane or feeble-minded
persons.
"(d) Deaf-mutes who cannot
read and write.
"(e) Electors registered under
subsection (c) of the next
preceding section who, after
failing to make a sworn
statement to the satisfaction of
the board of inspectors at any of
its two meetings for registration
and revision, that they are
incapacitated preparing their
ballots due to permanent
physical disability, present
themselves at the hour of voting
as incapacitated, irrespective
whether such incapacity be real
or feigned."
45 L-34150, October 16 and
November 4, 1971.
1 FULLTEXT
46 "For 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."
47 "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 elections, 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."
48 Edwards v. Lesueur, 33 S.W.
1130; Johnson v. Grand Forks
County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178
Ind. 336, 99 N.E. 1; State v.
Marcus, 160 Wis. 354, 152 N.W.
419.
49 In Alcantara v. Secretary of
the Interior, 61 Phil. 459, this
Court held that "when a state
constitution enumerates and
fixes the qualifications of
those who may exercise the
right of suffrage, the
legislature cannot take from nor
add to said qualifications unless
the power to do so is conferred
upon it by the constitution itself."
Since suffrage, according to
Webster, is a voice given not
only in the choice of a man for
an office or trust, but, also, in
deciding a controverted
question, it follows, considering
the said ruling in Alcantara, that
the constitutional qualifications
for voters apply equally to voters
in elections to public office and
to voters in a plebiscite.
Similarly, the Revised Election
Code provides in its section 2
that all elections of public
officers by the people and all
votings in connection with
315 | PART 1 C O N S T I
plebiscites shall be conducted in
conformity with the provisions of
said Code.
50 Republic Act No. 6388,
section 101 of which, in part,
provides:
"SEC. 101. Qualifications
prescribed for a voter. — Every
citizen of the Philippines, not
otherwise disqualified by law,
twenty-one years of age or over,
able to read and write, who shall
have resided in the Philippines
for one year and in the city,
municipality or municipal district
wherein he proposes to vote for
at least six months immediately
preceding the election, may vote
at any election.
xxx xxx xxx
51 "SEC.
102. Disqualifications. — The
following persons shall not be
qualified to vote:
"(a) Any person who has been
sentenced by final judgment to
suffer an imprisonment of not
less than one year, such
disability not having been
removed by plenary
pardon: Provided, however,
That any person disqualified to
vote under this paragraph shall
automatically reacquire the right
to vote upon expiration of ten
years after service of sentence
unless during such period, he
shall have been sentenced by
final judgment to suffer an
imprisonment of not less than
one year.
"(b) Any person who has been
adjudged by final judgment by
competent court of having
violated his allegiance to the
Republic of the Philippines.
"(c) Insane or feeble-minded
persons.
"(d) Persons who cannot
prepare their ballots
themselves."
1 FULLTEXT
52 "SEC. 10. ...
"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."
53 20 C.J., 179-181, quoted in
Demetrio v. Lopez, 50 Phil. 45,
60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.
54 Baldauf v. Gunson, 8 P. 2d.
265. See, also, Martin v.
McGarr, 117 P. 323, Glenn v.
Gnau, 64 S.W. 2d. 168.
Emphasis ours.
55 L-33325 and L-34043,
December 29, 1971.
56 Hopkins v. City of Duluth, 83
N.W. 536, 538. Emphasis ours.
57 Maddox v. Board of State
Canvassers, 149 P. 2d. 112,
115. Emphasis ours.
58 Port of Palm Beach District v.
State, 22 So. 2d. 581, 582-583.
Emphasis ours.
59 Art. X, section 1 of the 1935
Constitution.
60 Ten (10) years.
61 Art. X, section 2 of the 1935
Constitution.
62 Ibid.
63 Art. X, section 3 of the 1935
Constitution.
64 "SEC. 5. Organization of the
Commission on Elections. —
316 | PART 1 C O N S T I
The Commission shall adopt its
own rules of procedure. Two
members of the Commission
shall constitute a quorum. The
concurrence of two members
shall be necessary for the
pronouncement or issuance of a
decision, order or ruling.
"The Commission shall have an
executive and such other
subordinate officers and
employees as may be
necessary for the efficient
performance of its functions and
duties, all of whom shall be
appointed by the Commission in
accordance with the Civil
Service Law and rules.
"The executive officer of the
Commission, under the direction
of the Chairman, shall, have
charge of the administrative
business of the Commission,
shall have the power to
administer oaths in connection
with all matters involving the
business of the Commission,
and shall perform such, other
duties as may he required of
him by the Commission.
"SEC. 6. Power of the
Commission to Investigate and
to Hear Controversy and Issue
Subpoena. — The Commission
or any of the members thereof
shall, in compliance with the
requirement of due process,
have the power to summon the
parties to a controversy pending
before it,
issue subpoenae and subpoena
e duces tecum and otherwise
take testimony in any
investigation or hearing pending
before it, and delegate such
power to any officer of the
Commission who shall be a
member of the Philippine Bar. In
case of failure of a witness to
attend, the Commission, upon
proof of service of
thesubpoenae to said witness,
may issue a warrant to arrest
the witness land bring him
before the Commission or
officer before whom his
attendance is required. The
Commission shall have the
1 FULLTEXT
power to punish contempts
provided for in the Rules of
Court under the controversy
submitted to the Commission
shall after complaince with the
requirements of due process be
heard and decided by it within
thirty days after submission of
the case.
"The Commission may, when it
so requires, deputized any
member of any national or local
law enforcement agency and/or
instrumentality of the
government to execute under its
direct and immediate
supervision any of its final
decisions, orders, instructions or
rulings.
"Any decision, order or ruling of
the Commission on election
controversies may be reviewed
by the Supreme Court by writ of
a certiorari in accordance with
the Rules of Court or such
applicable laws as may enacted.
"Any violation of any final
executory decision, order or
ruling of the Commission shall
constitute contempt thereof."
65 64 S.W. 2d. 168.
66 L-35538, Roses, et al. v.
Secretary of National Defense,
et al.; L-35539, Diokno v. Hon.
Enrile, et al.; L-35540, Soliven,
et al. v. Secretary of National
Defense, et al.; L-35546,
Aquino, Jr., et al. v. Hon. Enrile,
et al.; L-35547, Garcia II v. Hon.
Enrile, et al.; L-35567 Doronila,
et al. v. Secretary of National
Defense, et al.; L-35573,
Randon v. Hon. Enrile, et al.
67 "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
317 | PART 1 C O N S T I
barangays (citizens assemblies)
have so far been established,
the people would like to decide
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;
1 FULLTEXT
"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
the results thereof to the
Department of Local
Governments and Community
Development immediately
thereafter, pursuant to the
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." (Emphasis
ours.).
68 McKinney v. Baker, 180 Ky.
526 203 S.W. 303, 304.
Emphasis ours.
69 Art. VII, section 2, 1935
Constitution.
70 Michael W. Roche v. Lamb,
306 N.Y.S. 2d. 515 (Dec. 17,
1969); State ex rel. Sathre v.
Bryne, 258 N.W. 121; State ex
rel. Shriver v. Hayes, 76 N.E.
2d. 869; Smith v. Bangham, 76
p 2d. 1022. McKim v. Brast, 117
S.E. 875; Head v. Wood, 107
So. 854; State ex rel. Watson v.
Pigg, 46 N.E. 2d. 232.
318 | PART 1 C O N S T I
71 See cases cited in the
preceding footnote. See, also,
Tiegs v. Patterson, 318 P. 2d.
588; State ex rel. Brown v. St.
Joseph Circuit Court, 95 N.E.
2d. 632; Williamson v. State
Election Board, 431 P. 2d. 352,
Baker v. Conway, 108 So. 18;
Cohoon v. Swain, 5 S.E. 2d. 1;
State ex rel. Mitchell v. Walcott,
83 A. 2d. 762; Doyle v. Ries,
285 N.W. 480; Grossglaus v.
Board of Elections of Stark
County, 88 N.E. 2d. 245; Walker
v. Hughes, 36 A. 2d. 47; Reese
v. Dempsey, 152 P. 2d. 157;
Dodd v. Gower, 62 S.W. 2d. 1;
Galloway v. Bradburn, 82 S.W.
1013; Hagan v. Henry, 76 S.W.
2d. 994.
72 106 Minn 392, 119 N.W. 408,
409.
73 63 N.J. Law, 289, cited in In
re McConaughy, supra.
74 78 Ark. 439, 96 S.W. 396,
cited in In re
McConaughy, supra.
75 See cases listed on pages
105-106, footnotes 56, 57 and
58.
76 On December 19, 1972.
77 24 Kansas 700, 714. See,
also, State ex rel. Williams v.
Robb, 183 P. 2d. 223, 228;
Harris v. Shanahan, 387 P. 2d.
771, 784, 785.
78 369 U.S. 186, 7 L.ed. 2d.
663, 684, citing Chaselton Corp.
v. Sinclair, 264 U.S. 543, 547,
548, 68 L. ed. 841, 843, 44 S.
Ct. 405.
79 Art. VII, section 10,
paragraph (1).
80 101 Va. 529, 44 S.E. 754.
81 Marifosque, et al. v. Luna,
101 Phil. 1223 (unreported); 37
Am. Jur. 669; 62 C.J.S. 749-
750; Guevara v. Inocentes, L-
25577, March 15, 1966.
1 FULLTEXT
82 Which, in some respects, is
regarded as an organ of the
Administration, and the news
items published therein are
indisputably censored by the
Department of Public
Information.
83 Daily Express, November 29,
1972, p. 4. Emphasis ours.
84 231 U.S. 28, 58 L. ed. 107,
114, 34 S. Ct. 1.
85 Baker v. Carr, 369 U.S. 186,
7 L. ed. 2d. 663, 82 S.Ct. 691.
86 Justice Barredo's opinion in
the plebiscite cases.
87 Joint Opinion of Justices
Makalintal and Castro, p. 153.
88 Justice Barredo's language.
89 At p. 153, joint opinion of
Justices Makalintal and Castro.
90 Joint Opinion of Justices
Makalintal and Castro, p. 153.
91 At p. 8, Idem.
ANNEX B
* The undersigned (Justice
Querube C. Makalintal) who had
reserved his right to do so, filed
a separate dissenting opinion
when the Court denied a motion
for reconsideration, and voted in
favor of the validity of the
questioned Resolution. Mr.
Justice Enrique M. Fernando
joined in the dissent.
* Thus by Presidential Decree
No. 86 what the Constitutional
Convention itself had proposed
unsuccessfully as an
amendment to the 1935
Constitution, reducing the voting
age from 21 to 18, but the
submission of which to a
plebiscite was declared invalid
by this Court in Tolentino vs.
COMELEC, became a reality of
an even more far-reaching
import — since fifteen-year olds
319 | PART 1 C O N S T I
were included in the Citizens
Assemblies.
* According to the Solicitor
General 92 Congressmen and
15 Senators (both numbers
constituting majorities) have
expressed their option.
* Luther v. Borden, 48 U.S. (7
Haw.) 1, 12 L. Ed. 581 (1849).
BARREDO, J., CONCURRING:
1 Charito Planas vs. Comelec,
et al., L-35925, January 22,
1973; Pablo C. Sanidad vs.
Comelec,
L-35929, January 22, 1973;
Gerardo Roxas, etc., et al. vs.
Comelec, et al., L-35940,
January 22, 1973; Eddie B.
Monteclaro vs. Comelec, et al.,
L-35941, January 22, 1973;
Sedfrey A. Ordoñez, et al., vs.
The National Treasurer of the
Philippines, et al., L-35942,
January 22, 1973; Vidal Tan, et
al., vs. Comelec, et al., L-35948,
January 22, 1973; Jose W.
Diokno, et al., vs. Comelec,
L-35953, January 22, 1973;
Jacinto Jimenez vs. Comelec, et
al., L-35961, January 22, 1973;
Raul M. Gonzales vs. Comelec,
et al., L-35965, January 22,
1973 and Ernesto Hidalgo vs.
Comelec, et al., L-35979,
January 22, 1973.
2 Executive Agreements are not
included in the corresponding
provision of the 1935
Constitution.
3 It Must be recalled that in the
Tolentino case, the
Constitutional Convention
intended to submit one
amendment which was to form
part of the Constitution still
being prepared by it separately
from the rest of the other parts
of such constitution still
unfinished, and We held that a
piece-meal submission was
improper. We had no occasion
to express any view as to how a
whole new Constitution may be
ratified.
1 FULLTEXT
* In 1880, he also wrote his
"Constitutional Law." Judge
Cooley, who was born in Attica,
New York in 1824, died in 1898.
Judge Cooley was also
professor and later dean of the
Law Department of the
University of Michigan and
Justice of the State Supreme
Court of Michigan from 1864 to
1885, when he failed to win re-
election to the court.
ESGUERRA, J.,
CONCURRING:
1 Charito Planas v. Commission
on Elections, et al., L-35925;
Pablo C. Sanidad v.
Commission on Elections, L-
35929; Gerardo Roxas, etc., et
al. v. Commission on Elections,
et al., L-35940; Eddie B.
Monteclaro v. The Commission
on Elections, et al., Sedfrey A.
Ordoñez, et al. v. The National
Treasurer of Philippines, et al.,
L-35942; Vidal Tan, et al. v.
Commission on Elections, et al.,
L-35948; Jose W. Diokno, et al.
v. The Commission on
Elections, L-35953; Jacinto
Jimenez v. Commission on
Elections, et al., L-35961; Raul
M. Gonzales v. The Honorable
Commission on Elections, et al.,
L-35965; Ernesto Hidalgo v.
Commission Elections, et al.,
L-35979.
2 See Tañada, et al. v. Cuenco,
L-10520, Feb. 28, 1957; Baker
v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468,
Note 14, and cases cited
therein.
4 Cooke v. Iverson, 108 Minn.
388, 122 NW 251.
5 L-38196, November 9, 1967,
21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of
State, 119 N.W. 408, 413; 32A
Words and Phrases p. 516. See
320 | PART 1 C O N S T I
also the plebiscite cases,
mentioned in footnote 1, ante.
8 Cooley, Constitutional
Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
FERNANDO, J., dissenting:
1 Memorandum for
Respondents, 2.
2 According to the 1935
Constitution: "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."
Art. XV, Section 1.
3 Lerner, Ideas are Weapons,
426 (1939). Earlier, in this
collection of essays, Lerner
made this not-entirely-
inaccurate observation: "No
governmental institution that
consists of a group of legal
technicians appointed for life
can ever hope to cope with,
much less solve, the exigent
problems of our polity." Ibid,
231. He was referring of course
to the Supreme Court of the
United States.
4 Frankfurter, Mr. Justice
Holmes and the Supreme Court,
25-26 (1938).
5 Black, The People and the
Court (1960).
6 Murphy, Elements of Judicial
Strategy (1964).
1 FULLTEXT
7 Cf. Angara v. Electoral
Commission, 63 Phil. 139
(1936); Tañada v. Cuenco, 103
Phil. 1051 (1957); Vera v. Arca,
L-25721, May 26, 1969, 28
SCRA 351.
8 Gonzales v. Commission on
Elections, L-28196, Nov. 9,
1967, 21 SCRA 774.
9 Tolentino v. Commission on
Elections, L-24150, Oct. 16,
1971, 41 SCRA 702.
10 Planas v. Commission on
Elections, L-35925, Jan. 25,
1973.
11 256 US 368 (1921).
12 Ibid, 374-375.
13 L-33964, Dec. 11, 1971, 42
SCRA 448.
14 Ibid, 504-505.
15 Dodd, Judicially
Nonenforceable Provisions of
Constitutions, in I Selected
Essays on Constitutional Law
355, 387 (1938).
16 Ibid, 395.
I7 Weston, Political Questions, I
Selected Essays an
Constitutional Law 418, 422
(1938)..
18 Cf. Bickel, The Least
Dangerous Branch (1962).
19 Cf. Freund, On
Understanding the Supreme
Court (1950). Also his The
Supreme Court of the United
States (1962).
20 Laurel, S., VII Proceedings of
the Philippine Constitutional
Convention (1934-1935),
Appendix L, 800.
21 65 Phil. 56 (1937).
22 Ibid, 96.
321 | PART 1 C O N S T I
23 63 Phil. 139 (1936).
24 L-35925, January 22, 1973.
25 Rostow, The Democratic
Character of Judicial Review in
Selected Essays on
Constitutional Law 1938 1962,
1, 2 (1963).
26 Ibid.
27 Ibid, 3.
28 Ibid, 3-4. The decision of
Justice Frankfurter referred to is
that of Rochin v. People of
California, 342 US 165 (1952).
29 Mason, The Supreme Court
from Taft to Warren, 154 (1967).
The words of Justice Frankfurter
found in his opinion in Stein v.
New York, 346 US 156 (1953).
30 Konefsky, The Legacy of
Holmes and Brandeis, 293
(1956).
31 Corwin, Judicial Review in I
Selected Essays on
Constitutional Law, 449, 450
(1938).
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the
Throne, 12 (1947).
34 Addresses and Papers of
Charles Evans Hughes, 139-
140 (1908).
35 Jackson, Robert H. The
Struggle for Judicial Supremacy,
3 (1949).
36 Haines, Charles Grove, The
Role of the Supreme Court in
American Government and
Politics, 1789-1835, 3 (1960).
37 369 US 186.
38 395 US 486.
39 328 US 549 (1946).
1 FULLTEXT
40 Ibid, 556.
41 Cf. Wesberry v. Sanders,
376 US 1, 11 L ed 2d 481, 84 S
Ct. (1964); Wright v.
Rockefeller, 376 US 52, 11 L ed
2d 512, 84 S Ct (1964);
Reynolds v. Sims, 377 US 533,
12 L ed 2d 506, 84 S Ct 1362
(1964); WMCA v. Lomenzo, 377
US 633, 12 L ed 2d 568, 84 S
Ct. (1964); Maryland Committee
v. Tauses, 377 US 656, 12 L ed
2d 595, 84 S Ct. 1442 (1964);
Davis v. Mann, 377 US 678, 12
L ed 2d 609, 84 S Ct. 1453
(1964); Roman v. Sincock, 377
US 695, 12 L ed 2d 620, 84
S.Ct. 1462 (1964); Lucas v.
Colorado General Assembly,
377 US 713, L ed 2d 632, 84 S
Ct. 1472 (1964); Fortson v.
Dorsey, 379 us 433, 13 L ed 2d
401, 85 S Ct. 498 (1965); Burns
v. Richardson, 384 US 73, 16 L
ed 2d 376, 86 S Ct. 1286
(1966); Sailors v. Kent Board of
Education, 387 US 105, 18 L ed
2d 650, 87 S Ct. 1549 (1967);
Dusch v. Davis, 387 US 112, 18
L ed 2d 656, 87 S Ct. 1554
(1967).
42 77 Phil. 192 (1946).
43 Ibid, 56.
44 New York Times Company v.
United States, 29 L ed. 822
(1971).
45 Wechsler, Toward Neutral
Principles of Constitutional Law,
72 Harv. Law Review 77 (1959).
It is the first essay in his
Principles, Politics and
Fundamental Law.
46 The principal articles are:
Pollak, Constitutional
Adjudication: Relative or
Absolute Neutrality, 11 J. Pub.
L. 48 (1962); Rostow, American
Legal Realism and the Sense of
Profession, 34 Rocky Mt. L.
Rev. 123, 136-46 (1962);
Henkin, Some Reflections on
Current Constitutional
Controversy, 109 U. Pa. L. Rev.
637 (1961); Henson, A Criticism
322 | PART 1 C O N S T I
of Criticism: In re Meaning, 29
Fordham L. Rev. 553 (1961);
Miller, A Note on the Criticism of
Supreme Court Decisions, 10 J.
Pub. L. 139 (1961), Wright, The
Supreme Court Cannot be
Neutral, 40 Texas L. Rev. 599
(1961); Arnold, Professor Hart's
Theology, 73 Harv. L. Rev. 1298
(1960); Black, The Lawfulness
of the Segration Decisions, 69
Yale L. J. 421 (1960); Griswold,
Of Time and Attitudes:
Professor art and Judge Arnold,
74 Harv. L. Rev. 81 (1960);
Karst, Legislative Facts in
Constitutional Litigation, 1960
Supreme Court Rev. 75; Miller
and Howell The Myth of
Neutrality in Constitutional
Adjudication, 27U. Chi. L. Rev.
661 (1960); Mueller & Schwartz,
The Principle of Neutral
Principles, 7 U.C.L.A.L. Rev.
571 (1960); Hart, Forward, The
Time Chart of the Justices, 73
Harv. L. Rev. 84 (1959); Pollak,
Racial Domination and Judicial
Integrity: A Reply to Professor
Wechsler, 108 U. Pa. L. Rev. 1
(1959).
47 Cahn, Supreme Court and
Supreme Law, 40 (1954).
46 Cf. Tañada v. Cuenco, 103
Phil. 1051, 1089 (1957).
49 Collier v. Frierson, 124 Ala.
100 (1854); Green v. Weller, 32
Miss. 650 (1856); Penn v.
Tollison, 26 Ark. 545 (1871);
Koehler v. Hill, 60 Iowa 543, 14
NW 738 (1883); McMillan v.
Blattner, 67 Iowa 287, 25 NW
245 (1885); State v. Davis, 2D
Neb. 220, 19 Pac. 894 (1888);
State v. Tooker, 15 Mont. 8, 37
Pac. 840 (1894); Russie v.
Brazzell, 128 Mo. 93, 30 SW
526 (1895); State v. Powell, 77
Miss. 543, 27 So. 927 (1900);
State v. Brookhart, 113 Iowa
250, 84 NW 1064 (1901); In re
Denny, 156 Ind. 104, 59 NE 359
(1901); Utter v. Moseley, 16
Idaho 274, 100 P. 1058 (1909);
Willis v. Kalbach, 109 Va. 475,
64 SE 342 (1909); People ex
rel. Swift v. Luce, 74 Misc. Rep.
551, 133 US 9 (1912);
1 FULLTEXT
McCreary v. Speer, 156 Ky.
783, 162 SW 99 (1914); State v.
Donald, 160 Wis. 21, 151 NW
331 (1915); State v. Marcus,
160 Wis. 354, 152 NW 419
(1915); State v. Campbell, 94
Ohio St. 403, 115 NE 29 (1916);
In re Opinion of Justices, 226
Mars. 607, 115 NE 921 (1917);
Scott v. Vouchan, 202 Mich.
692, 168 NW 709 (1918);
Hooper v. State, 89 So. 593,
206 Ala. 371 (1921); Switzer v.
State, 103 Ohio St. 306, 133 NE
552 (1921); Johnson v. Craft, 87
So. 375, 205 Ala. 386 (1921); In
re Opinion of the Justices, 237
Mars. 589, 130 NE 202 (1921);
Power v. Robertson, 130 Miss.
188, 93 So. 769 (1922);
Hamilton v. Deland, 191 NW
829, 221 Mich. 541 (1923); In re
Initiative Petition, 89 Okl. 124,
214 P. 186 (1923); Armstrong v.
King, 281 Pa. 207, 126 A. 263
(1924); McAdams v. Henley,
169 Ark. 97, 273 SW 355
(1925); Heinitsh v. Floyd, 130
SC 434, 126 SE 336 (1925);
State v. Zimmerman, 187 Wis.
180, 204 NW 803 (1925); Brown
v. City of New York, 125 Misc.
Rep. 1, 210 NYS 786 (1926);
State ex rel. Bahns v. City of
New Orleans, 163 La. 777 So.
718 (1927); Duncan v. Record
Pub. Co., 145 SC 196, 143 SE
31 (1928); Lane v. Lukens, 48
Idaho 517, 283 P. 532 (1929);
School Dist. of City of Pontiac v.
City of Pontiac, 262 Mich. 338,
247 NW 474 (1933); Collier v.
Gray, 116 Fla. 845, 157 So. 40
(1934); In re Opinion to
Governor, 55 R.I. 56, 178 A.
433 (1935); State ex rel Landis
v. Thompson, 120 Fla. 860,163
So. 270 (1935); Tausig v.
Lawrence, 328 Pa. 408, 197 A.
235 (1938); Downs v. City of
Bromingham, 240 Ala. 177, 198
So. 231 (1940); Graham v.
Jones, 198 La. 507, 3 So. 2d
761 (1941); Pearson v. Taylor,
159 Fla. 775, 32 So. 2d 826
(1947); Palmer v. Dunn, 216 SC
558, 59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St.
39, 15 Am. Rep. 563 (1874);
Senate File No. 31, 25 Neb.
323 | PART 1 C O N S T I
864, 41 NW 981 (1889); State v.
Grey, 21 Nev. 378, 32 Pac. 190
(1893); Nesbit v. People, 19
Colo. 441, 36 Pac. 221 (1894);
Hays v. Hays, 5 Idaho 154, 47
P. 732 (1897); Lovett v.
Ferguson, 10 SD 44, 71 NW
756 (1897); Russell v. Grey, 164
Mo. 69, 63 SW 849 (1901);
Gabbert v. Chicago, R.I. Ry. Co.
171 Mo. 84, 70 SW (1902);
People v. Sours, 31 Colo. 369,
102 74 P. 167 (1903); People v.
Loomis, 135 Mich. 556, 98 NW
262 (1904); West v. State, 50
Fla. 154, 39 So. 412 (1905);
State v. Winnett, 78 Neb. 379,
110 NW 113 (1907); Farrell v.
Port of Columbia, 50 Or. 169, 93
P. 254 (1908); In re
Mcconaughy, 106 Minn. 392,
119 NW 408 (1909); Fletcher v.
Gifford, 20 Idaho 18, 115 P. 824
(1911); Hammond v. Clark, 136
Ga. 313, 71 SE 479 (1911),
Crawford v. Gilchrist, 64 Fla. 41,
59 So. 963 (1912); Cudihee v.
Phelps, 76 Wash. 314, 136 P.
367 (1913); State v. Fairley, 76
Wash. 332, 136 P. 374 (1913);
Tabor v. City of Walla Walla, 77
Wash. 579, 137 P. 1040 (1914);
State v. Alderson, 49 Mont. 387,
142 P. 210 (1914); Ramsey v.
Persinger, 43 Okl. 41,141 P. 13
(1914); Cress v. Estes, 43 Okl.
213 P. 411 (1914); Cooney v.
Foote, 142 Ga. 647, 83 SE 537
(1914); Hildreth v. Taylor, 117
Ark. 465, 175 SW 40 (1915);
Jones v. McDade, 200 Ala. 230,
75 So. 988 (1917); State v.
Wetz, 40 N.D. 299, 168 NW 835
(1918); Ex Parte Ming, 42 Nev.
472, 181 P. 319 (1919); Lee V.
Price, 54 Utah, 474, 181 P. 948
(1919), Erwin v. Nolan, 280 Mo.
401, 217 SW 752 (1922); Boyd
v. Olcott, 102 Or. 327, 202 P.
431 (1921); Thompson v.
Livingston, 116 S.C. 412, 107
SE 581 (1921); Thrailkill v.
Smith, 106 Ohio St. 1, 138 NE
532 (1922); Brawner v. Curran,
141 Ind. 586, 119 A. 250 (1922);
Fahey v. Hackmann, 291 Mo.
351 SW 752 (1922); Goolsby v.
Stephens, 155 Ga. 529, 117 SE
439 (1923); Manos v. State, 98
Tax. Cr. 87, 263 SW 310
(1924); State v. Zimmermann,
1 FULLTEXT
187 Wis. 180, 208 NW 803
(1925); Taylor v. King, 284 Pa.
235, 130 A. 407 (1925); Board
of Liquidation of State Debt of
Louisiana v. Whitney-Central
Trust and Savings Bank, 168
La. 560, 122 So. 850 (1929);
State v. Cline, 118 Neb. 150,
224 NW 6 (1929); California
Teacher's Ass'n. v. Collins, 1
Cal. 2d 202, 34 P. 2d 134
(1934); Collier v. Gray, 116 Fla.
845, 157 So. 40 (1934); State
ex rel. v. State Bldg.
Commission v. Smith, 335 Mo.
840, 74 SW 2d 27 (1934);
Mayer v. Adams, 182 Ga. 524,
186 SE 420 (1936); Doody v.
State ex rel. Mobile County, 233
Ala. 287, 171 So. 504 (1937);
Swanson v. State, 132 Neb. 82,
271 NW 264 (1937); Stonns v.
Heck, 238 Ala. 196, 190 So. 78
(1939); Graham v. Jones, 198
La. 507, 3 So. 2d 761 (1941); In
re Initiative Petition No. 224,
197 Okl. 432, 172 P. 2d 324
(1946); City of Jackson v. Nims,
316 Mich. 694, 26 NW 2d 569
(1947); Keenan v. Price, 68
Idaho 423, 195 P. 2d 662
(1948).
51 Commonwealth Act No. 492
(1939).
52 Ibid, Section 3.
53 Commonwealth Act No. 517
(1940).
54 Article VI of the 1935
Constitution.
55 Article VII of the 1935
Constitution.
56 It is to be noted that under
Commonwealth Act No. 607
(1940), subsequently amended
by Commonwealth Act No. 657
(1940), there was a statutory
creation of an independent
Commission on Elections.
57 Section 3, Commonwealth
Act No. 517.
58 Republic Act No. 73 (1946).
324 | PART 1 C O N S T I
59 Section 3 of Republic Act 73
reads as follows: "The
provisions of Commonwealth
Act Numbered Three Hundred
and fifty-seven, otherwise
known as the Election Code,
and Commonwealth Numbered
Six hundred and fifty-seven,
entitled "An Act to Reorganize
the Commission on Elections,"
is so far as they are not
inconsistent herewith, are
hereby made applicable to the
election provided for in this Act."
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act
4913 reads thus: "The
provisions of Republic Act
Numbered One hundred eighty,
as amended, insofar as they are
not inconsistent herewith, are
made applicable to the election
provided for in this Act." It is to
be remembered that in the
plebiscite held, the two
proposals last. Cf. on this point,
Gonzales v. Commission on
Elections, L-28196, Nov. 9,
1967, 21 SCRA 774.
62 The 1935 Constitution
provides: "The Philippines is a
republican state. Sovereignty
resides in the people and all
government authority emanates
from them." Article II, Section 1.
63 Laski, Grammar of Politics,
4th ed., 34 (1937).
64 Mclver, The Web of
Government, 84 (1947).
65 Corwin, The Higher Law
Background of American
Constitutional Law, in 1
Selected Essays on
Constitutional Law 3 (1938).
66 92 Ky. 589, 18 SW 522.
67 Ibid, 523.
68 101 Va. 829, 44 SE 754.
69 Ibid, 755. A similar approach
may be noted in Arie v. State,
1 FULLTEXT
23 Okl. 166, 100 P. 23 (1909)
and Hammond v. Clark, 136 Ga.
313, 71 SE 479 (1911).
70 Araneta v. Dinglasan. 84
Phil. 368 (1949).
71 Cardozo, The Nature of the
Judicial Process, 141 (1921).
TEEHANKEE, J., dissenting:
1 Section 1, which is the lone
section of Art. XV; emphasis
supplied.
2 Article XVII, section 16,
proposed Constitution of Nov.
30,1972; emphasis supplied.
3 All quotations from
respondents' memo of
arguments dated March 2,
1973, pp. 2-5; emphasis
supplied.
4 Respondents' memo dated
March 2, 1973, p. 8; emphasis
supplied.
5 Gonzales vs. Comelec, 21
SCRA 774 (No. 9, 1967).
6 Tolentino vs. Comelec, 41
SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for
reconsideration in Tolentino
Comelec, L-34150; dated Nov.
4, 1971, at page 3, per Barredo,
J. with seven Justices
concurring; emphasis supplied.
8 Idem, at page 4, emphasis
supplied.
9 Joint opinion of JJ. Makalintal
and Castro, p. 153.
10 Article X, sec. 1 of the
Constitution entrusts "exclusive
charge" of the conduct of
elections to the Comelec. See
also the Election Code of 1971.
11 Araneta vs. Dinglasan (L-
2044); Araneta vs. Angeles (L-
2756); Rodriguez vs. Treasurer
325 | PART 1 C O N S T I
(L-3054); Guerrero vs.
Commissioner of Customs; and
Barredo vs. Comelec (L-3056),
jointly decided and reported in
84 Phil. 368.
12 Idem, at pp. 384-385;
emphasis supplied.
13 Idem, at p. 437.
14 Idem, at pp. 435-437.
15 Idem, at p. 383. Justice
Tuason further duly noted that
"These observations, though
beyond the issue as formulated
in this decision, may, we trust,
also serve to answer the
vehement plea that for good of
the Nation, the President should
retain his extraordinary powers
as long as turmoil and other ills
directly or indirectly traceable to
the late war harass the
Philippines."
16 Petitioner Monteclaro's notes
of oral argument dated February
23, 1973, p. 2, and Annex A
thereof.
17 State vs. Powell, 77 Miss.
543, 27 south 927.
18 Cooley's Constitutional
Limitations, 8th Ed., Vol. I, p. 81.
19 Article XV, sec. 1,
Constitution.
20 Article V, sec. 1,
Constitution.
21 Article X, sec. 2,
Constitution.
22 Respondents' memo dated
March 2, 1973, p. 5.
23 Respondents' Comment
dated Feb. 3, 1973, p. 67.
24 Idem, at p. 46; note in
parentheses supplied.
25 1 Cranch 137 (1803).
1 FULLTEXT
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak's "The
Constitution and the Supreme
Court", Vol. 1, p. 221.
29 Justice Felix Frankfurter, Of
Law and Men (1956), p. 5.
30 Tolentino vs. Comelec L-
34150; decision of October 16,
1971, per Barredo, J. at p. 8.
30a Con-Con Res. No. 1
proposing the urgent lowering of
the voting age to enfranchise
the 18-year olds retained the
"permissive" language of
section 1, Art. V. Thus, the
proposed amendment read
"Section 1. Suffrage may be
exercised by (male) citizens of
the Philippines not otherwise
disqualified by law, who are
(twenty one) EIGHTEEN years
of age or over and are able to
read and write ..."
31 Resolution of Nov. 4, 1971,
per Barredo, J. at p. 15.
32 Decision of Oct. 16, 1971, at
p. 21.
33 21 SCRA 774 (Nov. 9, 1967).
34 Decision of Oct. 16, 1971, at
p. 24.
35 Reyes, J.B.L. (now retired),
Zaldivar, Castro and Makasiar,
JJ.
36 Idem at pp. 1-2.
37 Idem at p. 3.
38 Resolution of Nov. 4, 1971
in Tolentino, per Barredo, J.; pp.
3-4.
39 Decision of Oct. 16, 1971
in Tolentino, per Barredo, J. at
p. 19.
326 | PART 1 C O N S T I
40 All quotations are from the
Chief Justice's concurring
opinion in Tolentino, pp. 4-7.
41 Separate op. of J.
Teehankee concurring in Res.
of No. 4, 1971 in Tolentino, pp.
8, 9, 10.
42 This Court thus declared
in Tolentino the Con-Con voting
age reduction resolution as null
and void and prohibited its
submittal at the 1971 elections
for lack of proper submission
since it did not "provide the
voter ... ample basis for an
intelligent appraisal of the
amendment. "Dec. of October
16, 1971, per Barredo, J.
43 In re-Opinion of Justices, 115
N.E. Rep. 922-923.
44 Duncan vs. McCall, 139 U.S.
449, 35 L. Ed. 219.
45 "Barrios are units of
municipalities or municipal
districts in which they are
situated ... ." Rep. Act 3590,
sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
47 Idem, par. 2.
48 Idem, par. 3 and 4, emphasis
supplied.
49 One barrio lieutenant and six
barrio councilmen; "Voting shall
be by secret ballot. ... ." Idem,
sec. 8.
50 Idem, sec. 10, italics
supplied. The same section
further disqualifies persons
convicted by final judgment to
suffer one year or more of
imprisonment "within two years
after service" or who have
violated their allegiance to the
Republic and insane or feeble-
minded persons.
51 Supra, p. 2.
1 FULLTEXT
52 Rizal, Cavite, Bataan,
Camarines Sur and Negros
Occidental, petitioners'
manifestation and supplemental
rejoinder dated March 21, 1973
in L-36165.
53 Respondents' rejoinder dated
March 20, 1973 and sur-
rejoinder dated March 29, 1973.
54 Under Proclamation No.
1103 dated Jan. 17, 1973, it is
recited that "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."
55 Respondents' memo dated
March 2, 1973, supra, p. 2.
56 As restated by Barredo, J. in
his separate op. in the plebiscite
cases, who, however, did not
look on the same with favor,
since the constitutional point
(that the Comelec has exclusive
charge of the conduct of
elections and plebiscites) seems
to have been overlooked in the
Assemblies."
57 Convention Minutes of Nov.
22, 1972 submitted as Annex A
of petitioner-delegate Sedfrey A.
Ordoñez et. al. in the plebiscite
case L-359042, par. 12 of
petition and admitted in par. 4 of
answer of therein respondents
dated Dec. 15, 1972.
ANTONIO, J., CONCURRING:
* First decision promulgated by
First Division of the Supreme
Court.
327 | PART 1 C O N S T I
1 "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. 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."
(Wheeler v. Board of Trustees,
37 S.E. 2d 322, 327).
"Every proposal which affects a
change in a Constitution or adds
or takes away from it is an
"amendment', while a "revision"
implies a re-examination and
statement of the Constitution, or
some part of it, in a corrected or
improved form." (Const. Secs.
196, 197, Staples v. Gilmer, 33
S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of
constitution are separate
procedures each having a
substantial field of application
not mere alternative procedures
in the same field." (McFadden v.
Jordan, 196 P. 2d 787, 797 32
Cal. 2d 330).
2 Cf. Sections 1 and 2 of Article
XIV, Constitution of Minnesota
in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7
L. ed. 663.
4 Cf. State Constitutions of
Alaska, California, Delaware,
Florida, Michigan, Minnesota,
Nevada, New Hampshire,
Oklahoma, Oregon, Utah and
Wyoming in Appendix to this
opinion.
* Leon O. Ty, Seven Months of
Martial Law, Daily Express.
1 FULLTEXT
* Panorama, May 6, 1973.
5 "A written constitution is
susceptible of change in two
ways: by revolution, which
implies action not pursuant to
any provision of the constitution
itself; and by revision, which
implies action pursuant to some
procedural provision in the
constitution. This distinction is
concerned with the quare and
not with the quantum of change.
It may be significant, however,
that the alleged alteration does
or does not purport to affect the
existence of the court itself. In
the nature of things, a
revolutionary charge does not
admit judicial power as such to
determine the fact of its
occurrence. If revolutionary
constitution sets up a court
differently constituted from the
pre-revolutionary court, neither
tribunal is confronted with a
substantial problem, for neither
can deny the act by which it was
created without denying the fact
of its creation. Thus the
Supreme Court in Luther v.
Borden (supra) uses language
substantially parallel with what
has been indicated above as
logical explanation of the Duke
of York's case. For the court to
give serious judicial
consideration to such a question
would present "the singular
spectacle of a court sitting as a
court to declare that we are not
a court." (Brittle v. People, 2
Neb. 198, 214 [1873].) And
even the alleged new
constitution purports to leave
intact the former court and to
permit its work to go on without
hiatus, the decision which the
judges must make is still an
individual choice to be made by
them as a matter of practical
politics. Two commissions are
being held out to them, and if
they will act as a court they
must assess under which
commission they are acting. To
put the matter another way, it
must be true that in the first
case above — of two
constitutions purporting to
establish two different courts, —
328 | PART 1 C O N S T I
the men who were judges
under the old regime and the
men who are called to be judges
under the new have each to
decide as individuals what they
are to do; and it may be that
they choose at grave peril with
the factional outcome still
uncertain. And, although it is
equally obvious, the situation is
logically identical where the
same men are nominated to
constitute the court under both
the old and new constitution, at
a time when the alleged change
is occurring — if it is —
peaceably and against a placid
popular background. Men under
such circumstances may write
most praiseworthily principles of
statesmanship, upon
sovereignty and, its nature
modes of action, and upon the
bases of government, to justify
the choice between the two
commissions. They can assert
their choice in the course of
purported judicial action. But
they cannot decide as a court,
for the decision, once made, by
a retroactive hypothesis
excludes any assumption of
controversiality in the premises..
"Where the alleged change
occurs not through revolutionary
measures but through what has
been called revision, these
logical difficulties disappear in
one aspect, but become far
more embarrassing in another.
Where the alteration purports to
be made along the lines of a
procedural method laid down in
the constitution, there is a
standard which the court can
apply and, by so doing, it can
perceive judicially whether or
not the change has followed the
prescribed lines. If it has, there
is no difficulty in pronouncing as
a matter of law its
accomplishment. Only one
exception is possible, namely,
the ease where the alteration
purports at once to abolish the
court or to depose its personnel.
Then, although there would be a
question of law to be decided, it
may be wondered who there is
to decide it. Suppose, however,
1 FULLTEXT
the mode of change has failed the whole field of problems
in some way to conform to a which the Duke of York's case
directory provision of the and the American constitutional
amending clause of the amendment cases present, the
constitution; is the court to court as a court is precluded
declare the attempt at alteration from passing upon the fact of
unsuccessful? It would seem as change by a logical difficulty
a matter of law that it must do which is not to be surmounted. It
so; and yet what is the situation follows that there is no room for
if the proponents of the change considering whether the court
say, "It is true that this measure ought graciously and
failed under the amending deferentially to look to the
clause, but as a revolutionary executive or legislative for a
measure it was a success and decision that a change has or
we insist upon its recognition." has not taken place.
Clearly the members of the
court are now more badly than 6 & 7 Ibid. pp. 301, 305.
ever entangled in the logical
difficulties which attend a
APPENDIX TO OPINION.
purported judicial
pronouncement upon the
achievement or non- @ The inclusion in the Appendix
achievement of revolutionary of provisions for Amendment
change. For the temptation will and Revision in State
be great to treat the matter as a Constitutions, adopted after
legal question. The times are 1935, is only to stress the fact
peaceful. The changes probably that the distinction between
do no affect the tenure of many Amendment and Revision of
offices of any branch of the Constitution, which existed at
government. The popular inertia the time of the adoption of the
is likely to allow the court 1935 Constitution, has
successfully to assume the continued up to the present.
question to be one of law. The
path of fallacy is not too
strikingly fallacious to the
uncritical observer. It may lead
to just results. The judges'
personal inclinations will be to
show deference to the
expression of popular sentiment
which has been given. And yet,
if they declare the change in
force, they are truly making a
personal declaration that they
believe the change to be the
directly expressed will of the
sovereign, which will they assert
to be law, but the fact of
existence of which will — and
this is the real decision — is not
ascertainable in the given case
by any legal means. It is
submitted that this is true, and
that the conclusions offered in
the discussion of revolutionary
change are true, also, whether
the quantum of change involved
be vast or almost negligible.

"The net result of the preceding

discussion is this: that in almost
329 | PART 1 C O N S T I 1 FULLTEXT
 EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S.
SALAMAT, MARIO C. STA. ANA, JOSE C.
TOLENTINO, ROGELIO J. DE LA ROSA and
JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his
capacity as OIC Governor of the Province of
Rizal, HON. ROMEO C. DE LEON, in his
capacity as OIC Mayor of the Municipality of
Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z.
LACANIENTA, TEODORO V. MEDINA,
ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by
petitioners seeking to enjoin respondents from
replacing them from their respective positions as
Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay,
Province of Rizal.
As required by the Court, respondents submitted
their Comment on the Petition, and petitioner's
their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982,
petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners
Angel S. Salamat, Mario C. Sta. Ana, Jose C.
Tolentino, Rogelio J. de la Rosa and Jose M.
Resurreccion, as Barangay Councilmen of
Barangay Dolores, Taytay, Rizal under Batas
Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de
Leon received a Memorandum antedated
December 1, 1986 but signed by respondent
OIC Governor Benjamin Esguerra on February
8, 1987 designating respondent Florentino G.
Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by
the OIC Governor was "by authority of the
Minister of Local Government."
Also on February 8, 1987, respondent OIC
Governor signed a Memorandum, antedated
December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta
Teodoro V. Medina, Roberto S. Paz and
Teresita L. Tolentino as members of the
Barangay Council of the same Barangay and
Municipality.
That the Memoranda had been antedated is
evidenced by the Affidavit of respondent OIC
Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of
Rizal having been appointed as
such on March 20, 1986;
That as being OIC Governor of
the Province of Rizal and in the
performance of my duties
thereof, I among others, have
signed as I did sign the
unnumbered memorandum
ordering the replacement of all
the barangay officials of all the
barangay(s) in the Municipality
of Taytay, Rizal;
That the above cited
memorandum dated December
1, 1986 was signed by me
personally on February 8,1987;
That said memorandum was
further deciminated (sic) to all
concerned the following day,
February 9. 1987.
FURTHER AFFIANT SAYETH
NONE.
Pasig, Metro Manila, March 23,
1987.
Before us now, petitioners pray that the subject
Memoranda of February 8, 1987 be declared
null and void and that respondents be prohibited
from taking over their positions of Barangay
Captain and Barangay Councilmen, respectively.
Petitioners maintain that pursuant to Section 3 of
the Barangay Election Act of 1982 (BP Blg. 222),
their terms of office "shall be six (6) years which
shall commence on June 7, 1982 and shall
continue until their successors shall have
elected and shall have qualified," or up to June
7, 1988. It is also their position that with the
ratification of the 1987 Constitution, respondent
OIC Governor no longer has the authority to
replace them and to designate their successors.
On the other hand, respondents rely on Section
2, Article III of the Provisional Constitution,
330 | PART 1 C O N S T I 1 FULLTEXT
promulgated on March 25, 1986, which
provided:
SECTION 2. All elective and
appointive officials and
employees under the 1973
Constitution shall continue in
office until otherwise provided
by proclamation or executive
order or upon the designation or
appointment and qualification of
their successors, if such
appointment is made within a
period of one year from
February 25,1986.
By reason of the foregoing provision,
respondents contend that the terms of office of
elective and appointive officials were abolished
and that petitioners continued in office by virtue
of the aforequoted provision and not because
their term of six years had not yet expired; and
that the provision in the Barangay Election Act
fixing the term of office of Barangay officials to
six (6) years must be deemed to have been
repealed for being inconsistent with the
aforequoted provision of the Provisional
Constitution.
Examining the said provision, there should be no
question that petitioners, as elective officials
under the 1973 Constitution, may continue in
office but should vacate their positions upon the
occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional
Constitution, there has been no proclamation or
executive order terminating the term of elective
Barangay officials. Thus, the issue for resolution
is whether or not the designation of respondents
to replace petitioners was validly made during
the one-year period which ended on February
25, 1987.
Considering the candid Affidavit of respondent
OIC Governor, we hold that February 8, 1977,
should be considered as the effective date of
replacement and not December 1,1986 to which
it was ante dated, in keeping with the dictates of
justice.
But while February 8, 1987 is ostensibly still
within the one-year deadline, the aforequoted
provision in the Provisional Constitution must be
deemed to have been overtaken by Section 27,
Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution
shall take effect immediately
upon its ratification by a majority
of the votes cast in a plebiscite
held for the purpose and shall
supersede all previous
Constitutions.
The 1987 Constitution was ratified in a plebiscite
on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to
have been superseded. Having become
inoperative, respondent OIC Governor could no
longer rely on Section 2, Article III, thereof to
designate respondents to the elective positions
occupied by petitioners.
Petitioners must now be held to have acquired
security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a
policy of the State to guarantee and promote the
autonomy of the barangays to ensure their
fullest development as self-reliant
communities. Similarly, the 1987 Constitution
2
ensures the autonomy of local governments and
of political subdivisions of which the barangays
form a part, and limits the President's power to
3
"general supervision" over local
governments. Relevantly, Section 8, Article X of
4
the same 1987 Constitution further provides in
part:
Sec. 8. The term of office of
elective local officials, except
barangay officials, which shall
be determined by law, shall be
three years ...
Until the term of office of barangay officials has
been determined by law, therefore, the term of
office of six (6) years provided for in the
Barangay Election Act of 1982 should still
5
govern.
Contrary to the stand of respondents, we find
nothing inconsistent between the term of six (6)
years for elective Barangay officials and the
1987 Constitution, and the same should,
therefore, be considered as still operative,
pursuant to Section 3, Article XVIII of the 1987
Constitution, reading:
Sec. 3. All existing laws,
decrees, executive orders,
proclamations letters of
instructions, and other executive
issuances not inconsistent, with
this Constitution shall remain
operative until amended,
repealed or revoked.
WHEREFORE, (1) The Memoranda issued by
respondent OIC Governor on February 8, 1987
331 | PART 1 C O N S T I 1 FULLTEXT
designating respondents as the Barangay
Captain and Barangay Councilmen, respectively,
of Barangay Dolores, Taytay, Rizal, are both
declared to be of no legal force and effect; and
(2) the Writ of Prohibition is granted enjoining
respondents perpetually from proceeding with
the ouster/take-over of petitioners' positions
subject of this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Feliciano, Gancayco, Padilla, Bidin and Cortes,
JJ., concur.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar
is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite
for its ratification was held or whether it took
effect on February 11, 1987, the date its
ratification was proclaimed per Proclamation No.
58 of the President of the Philippines, Corazon
C. Aquino.
The Court's decision, with the lone dissent of Mr.
Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose," the
1987 Constitution took effect on February 2,
1987, the date of its ratification in the plebiscite
held on that same date.
The thrust of the dissent is that the Constitution
should be deemed to "take effect on the date its
ratification shall have been ascertained and not
at the time the people cast their votes to approve
or reject it." This view was actually proposed at
the Constitutional Commission deliberations, but
was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the
Constitution "will be effective on the very day of
the plebiscite."
The record of the proceedings and debates of
the Constitutional Commission fully supports the
Court's judgment. It shows that the clear,
unequivocal and express intent of the
Constitutional Conunission in unanimously
approving (by thirty-five votes in favor and none
against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution
was that "the act of ratification is the act of
voting by the people. So that is the date of the
ratification" and that "the canvass thereafter [of
the votes] is merely the mathematical
confirmation of what was done during the date of
the plebiscite and the proclamation of the
President is merely the official confirmatory
declaration of an act which was actually done by
the Filipino people in adopting the Constitution
when they cast their votes on the date of the
plebiscite."
The record of the deliberations and the voting is
reproduced hereinbelow: 1
MR. MAAMBONG. Madam
President, may we now put to a
vote the original formulation of
the committee as indicated in
Section 12, unless there are
other commissioners who would
like to present amendments.
MR. DAVIDE. Madam
President.
THE
PRESIDENT. Commissioner
Davide is recognized.
MR. DAVIDE. May I propose the
following amendments.
On line 2, delete the words "its
ratification" and in lieu thereof
insert the following-. "THE
PROCLAMATION BY THE
PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the
last line, after "constitutions,"
add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a
moment, Madam President. If
Commissioner Davide is going
to propose an additional
sentence, the committee would
suggest that we take up first his
amendment to the first sentence
as originally formulated. We are
now ready to comment on that
proposed amendment.
The proposed amendment
would be to delete the words "its
332 | PART 1 C O N S T I 1 FULLTEXT
ratification and in lieu thereof
insert the words "THE
PROCLAMATION BY THE
PRESIDENT THAT IT HAS
BEEN RATIFIED." And the
second amendment would be:
After the word "constitutions,"
add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first
proposed amendment.
However, we regret that we
cannot accept the second
proposed amendment after the
word "constitutions" because
the committee feels that when
we talk of all previous
Constitutions, necessarily it
includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that
explanation, l will not insist on
the second. But, Madam
President, may I request that I
be allowed to read the second
amendment so the Commission
would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam
President, we can now do that.
MR. DAVIDE. The second
sentence will read: "THE
PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS
FOLLOWING THE
COMPLETION OF THE
CANVASS BY THE
COMMISSION ON ELECTIONS
OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam
President, after conferring with
our chairman, the committee
feels that the second proposed
amendment in the form of a new
sentence would not be exactly
necessary and the committee
feels that it would be too much
for us to impose a time frame on
the President to make the
proclamation. As we would
recall, Madam President, in the
approved Article on the
Executive, there is a provision
which says that the President
333 | PART 1 C O N S T I
shall make certain that all laws
shall be faithfully complied.
When we approve this first
sentence, and it says that there
will be a proclamation by the
President that the Constitution
has been ratified, the President
will naturally comply with the law
in accordance with the
provisions in the Article on the
Executive which we have cited.
It would be too much to impose
on the President a time frame
within which she will make that
declaration. It would be
assumed that the President
would immediately do that after
the results shall have been
canvassed by the COMELEC.
Therefore, the committee
regrets that it cannot accept the
second sentence which the
Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to
withdraw the same on the
assumption that there will be an
immediate proclamation of the
results by the President.
MR. MAAMBONG. With that
understanding, Madam
President.
MR. DAVIDE. I will not insist on
the second sentence.
FR. BERNAS. Madam
President.
THE PRESIDENT.
Commissioner Bernas is
recognized.
FR. BERNAS. I would ask the
committee to reconsider its
acceptance of the amendment
which makes the effectivity of
the new Constitution dependent
upon the proclamation of the
President. The effectivity of the
Constitution should commence
on the date of the ratification,
not on the date of the
proclamation of the President.
What is confusing, I think,
is what happened in 1976 when
the amendments of 1976 were
1 FULLTEXT
ratified. In that particular case,
the reason the amendments of
1976 were effective upon the
proclamation of the
President was that the draft
presented to the people said
that the amendment will be
effective upon the proclamation
made by the President. I have a
suspicion that was put in there
precisely to give the President
some kind of leeway on whether
to announce the ratification or
not. Therefore, we should not
make this dependent on the
action of the President since this
will be a manifestation of the act
of the people to be done under
the supervision of the
COMELEC and it should be the
COMELEC who should make
the announcement that, in fact,
the votes show that the
Constitution was ratified and
there should be no need to wait
for any proclamation on the part
of the President.
MR. MAAMBONG. Would the
Gentleman answer a few
clarificatory questions?
FR. BERNAS. Willingly, Madam
President.
MR. MAAMBONG. The
Gentleman will agree that a date
has to be fixed as to exactly
when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say
that the ratification of the
Constitution is on the date the
votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to
the mechanics of the whole
thing, Madam President. We
present the Constitution to a
plebiscite, the people exercise
their right to vote, then the votes
are canvassed by the
Commission on Elections. If we
delete the suggested
amendment which says: "THE
PROCLAMATION BY THE
PRESIDENT THAT IT HAS
BEEN RATIFIED," what would
334 | PART 1 C O N S T I
be, in clear terms, the date
when the Constitution is
supposed to be ratified or not
ratified, as the case may be?
FR. BERNAS. The date would
be the casting of the ballots. if
the President were to say that
the plebiscite would be held, for
instance, on January 19, 1987,
then the date for the effectivity
of the new Constitution would
be January 19, 1987.
MR. MAAMBONG. In other
words, it would not depend on
the actual issuance of the
results by the Commission on
Elections which will be doing the
canvass? That is immaterial
Madam President
FR. BERNAS. It would not,
Madam President, because
"ratification" is the act of saying
"yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the
date of the plebiscite itself,
Madam President?
FR. BERNAS. Yes, Madam
President.
MR. MAAMBONG. With that
statement of Commissioner
Bernas, we would like to know
from the proponent,
Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam
President, I am insisting on the
amendment because I cannot
subscribe to the view of
Commissioner Bernas, that the
date of the ratification is
reckoned from the date of the
casting of the ballots. That
cannot be the date of reckoning
because it is a plebiscite all over
the country. We do not split the
moment of casting by each of
the voters. Actually and
technically speaking, it would be
all right if it would be upon the
announcement of the results of
the canvass conducted by the
COMELEC or the results of the
1 FULLTEXT
plebiscite held all over the
country. But it is necessary that
there be a body which will make
the formal announcement of the
results of the plebiscite. So it is
either the President or the
COMELEC itself upon the
completion of the canvass of the
results of the plebiscite, and I
opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam
President.
THE PRESIDENT.
Commissioner Nolledo is
recognized.
MR. NOLLEDO. Thank you,
Madam President. I beg to
disagree with Commissioner
Davide. I support the stand of
Commissioner Bernas
because it is really the date of
the casting of the "yes" votes
that is the date of the ratification
of the Constitution The
announcement merely confirms
the ratification even if the results
are released two or three days
after. I think it is a fundamental
principle in political law, even in
civil law, because an
announcement is a mere
confirmation The act of
ratification is the act of voting by
the people. So that is the date of
the ratification. If there should
be any need for presidential
proclamation, that proclamation
will merely confirm the act of
ratification.
Thank you, Madam President.
THE PRESIDENT. Does
Commissioner Regalado want
to contribute?
MR. REGALADO. Madam
President, I was precisely going
to state the same support for
Commissioner Bernas, because
the canvass thereafter is merely
the mathematical
confirmation of what was done
during the date of the plebiscite
and the proclamation of the
335 | PART 1 C O N S T I
President is merely the official
confirmatory declaration of an
act which was actually done by
the Filipino people in adopting
the Constitution when they cast
their votes on the date of the
plebiscite.
MR. LERUM. Madam President,
may I be recognized.
THE PRESIDENT.
Commissioner Lerum is
recognized.
MR. LERUM. I am in favor of
the Davide amendment because
we have to fix a date for the
effectivity of the Constitution.
Suppose the announcement is
delayed by, say, 10 days or a
month, what happens to the
obligations and rights that
accrue upon the approval of the
Constitution? So I think we must
have a definite date. I am,
therefore, in favor of the Davide
amendment.
MR. MAAMBONG. Madam
President.
THE PRESIDENT.
Commissioner Maambong is
recognized.
MR. MAAMBONG. With the
theory of the Commissioner,
would there be a necessity for
the Commission on Elections to
declare the results of the
canvass?
FR. BERNAS. There would be
because it is the Commission on
Elections which makes the
official announcement of the
results.
MR. MAAMBONG. My next
question which is the final one
is: After the Commision on
Elections has declared the
results of the canvass, will there
be a necessity for the President
to make a proclamation of the
results of the canvass as
submitted by the Commission
on Elections?
1 FULLTEXT
FR. BERNAS. I would say there
would be no necessity, Madam
President.
MR. MAAMBONG. In other
words, the President may or
may not make the proclamation
whether the Constitution has
been ratified or not.
FR. BERNAS. I would say that
the proclamation made by the
President would be immaterial
because under the law, the
administration of all election
laws is under an independent
Commission on Elections. It is
the Commission on Elections
which announces the results.
MR. MAAMBONG. But
nevertheless, the President may
make the proclamation.
FR. BERNAS. Yes, the
President may. And if what he
says contradicts what the
Commission on Elections says,
it would have no effect. I would
only add that when we say that
the date of effectivity is on the
day of the casting of the votes,
what we mean is that the
Constitution takes effect on
every single minute and every
single second of that day,
because the Civil Code says a
day has 24 hours.So that even if
the votes are cast in the
morning, the Constitution is
really effective from the previous
midnight.
So that when we adopted the
new rule on citizenship, the
children of Filipino mothers or
anybody born on the date of
effectivity of the 1973
Constitution, which is January
17, 1973, are natural-born
citizens, no matter what time of
day or night.
MR. MAAMBONG. Could we,
therefore, safely say that
whatever date is the publication
of the results of the canvass by
the COMELEC retroacts to the
date of the plebiscite?
336 | PART 1 C O N S T I
FR. BERNAS. Yes, Madam
President.
MR. MAAMBONG. I thank the
Commissioner.
MR. GUINGONA. Madam
President.
THE PRESIDENT.
Commissioner Guingona is
recognized.
MR. GUINGONA. Mention was
made about the need for having
a definite date. I think it is
precisely the proposal of
Commissioner Bernas which
speaks of the date (of
ratification that would have a
definite date, because there
would be no definite date if we
depend upon the canvassing by
the COMELEC.
Thank you,
THE PRESIDENT.
Commissioner Concepcion is
recognized.
MR. CONCEPCION. Thank you,
Madam President.
Whoever makes the
announcement as to the result
of the plebiscite, be it the
COMELEC or the President,
would announce that a majority
of the votes cast on a given date
was in favor of the Constitution.
And that is the date when the
Constitution takes effect, apart
from the fact that the provision
on the drafting or amendment of
the Constitution provides that a
constitution becomes effective
upon ratification by a majority of
the votes cast, although I would
not say from the very beginning
of the date of election because
as of that time it is impossible to
determine whether there is a
majority. At the end of the day of
election or plebiscite, the
determination is made as of that
time-the majority of the votes
cast in a plebiscite held on such
and such a date. So that is the
time when the new Constitution
1 FULLTEXT
will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now
hear Vice-President Padilla.
MR. PADILLA. Madam
President, I am against the
proposed amendment of
Commissioner Davide and I
support the view of
Commissioner Bernas and the
others because the ratification
of the Constitution is on the date
the people, by a majority vote,
have cast their votes in favor of
the Constitution. Even in civil
law, if there is a contract, say,
between an agent and a third
person and that contract is
confirmed or ratified by the
principal, the validity does not
begin on the date of ratification
but it retroacts from the date the
contract was executed.
Therefore, the date of the
Constitution as ratified should
retroact to the date that the
people have cast their
affirmative votes in favor of the
Constitution.
MR. MAAMBONG. Madam
President.
THE PRESIDENT.
Commissioner Maambong is
recognized
MR. MAAMBONG. We will now
ask once more Commissioner
Davide if he is insisting on his
amendment
MR. DAVIDE. In view of the
explanation and
overwhelming tyranny of
the opinion that it will be
effective on the very day of the
plebiscite, I am withdrawing my
amendment on the assumption
that any of the following bodies
the Office of the President or the
COMELEC will make the formal
announcement of the results.
MR. RAMA. Madam President,
we are now ready to vote on the
original provision as stated by
the committee.
MR. MAAMBONG. The
committee will read again the
formulation indicated in the
original committee report as
Section 12.
This Constitution shall take
effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite called
for the purpose and shall
supersede all previous
Constitutions.
We ask for a vote, Madam
President.
VOTING
THE PRESIDENT. As many as
are in favor, please raise their
hand. (Several Members raised
their hands.)
As many as are against, please
raise their hand. (No Member
raised his hand.)
The results show 35 votes in
favor and none against; Section
12 is approved. 2
The Court next holds as a consequence of its
declaration at bar that the Constitution took
effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the
Provisional Constitution promulgated on March
25, 1986 must be deemed to have been
superseded by the 1987 Constitution on the
same date February 2, 1987 and (2) by and after
said date, February 2, 1987, absent any saying
clause to the contrary in the Transitory Article of
the Constitution, respondent OIC Governor
could no longer exercise the power to replace
petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted
replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of
their successors could no longer produce any
legal force and effect. While the Provisional
Constitution provided for a one-year period
expiring on March 25, 1987 within which the
power of replacement could be exercised, this
period was shortened by the ratification and
effectivity on February 2, 1987 of the
Constitution. Had the intention of the framers of
the Constitution been otherwise, they would
337 | PART 1 C O N S T I 1 FULLTEXT
have so provided for in the Transitory Article, as
indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the
incumbent President and Vice-President to noon
of June 30, 1992 for purposes of synchronization
of elections, the continued exercise of legislative
powers by the incumbent President until the
convening of the first Congress, etc.
A final note of clarification, as to the statement in
the dissent that "the appointments of some
seven Court of Appeals Justices, 71 provincial
fiscals and 55 city fiscals reported extended (by)
the President on February 2, 1987 . . . could be
open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of
the Constitution which require prior endorsement
thereof by the Judicial and Bar Council created
under the Constitution. It should be stated for the
record that the reported date of the
appointments, February 2, 1987, is incorrect.
The official records of the Court show that the
appointments of the seven Court of Appeals
Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on
or before January 31, 1987. (Similarly, the
3 or not that cut-off period began on February 2,
records of the Department of Justice likewise
show that the appointment papers of the last
batch of provincial and city fiscals signed by the
President in completion of the reorganization of
the prosecution service were made on January
31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record
that since February 2, 1987, no appointments to
the Judiciary have been extended by the
President, pending the constitution of the
Judicial and Bar Council, indicating that the
Chief Executive has likewise considered
February 2, 1987 as the effective date of the
Constitution, as now expressly declared by the
Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice
Herrera is able to prove her point with more
telling effect than the tones of thunder. She has
written another persuasive opinion, and I am
delighted to concur. I note that it in effect affirms
my dissents in the De la Serna, Zamora,
Duquing and Bayas cases, where I submitted
that the local OICs may no longer be summarily
replaced, having acquired security of tenure
under the new Constitution. Our difference is
that whereas I would make that right commence
on February 25, 1987, after the deadline set by
the Freedom Constitution, Justice Herrera would
opt for February 2, 1987, when the new
Constitution was ratified. I yield to that better
view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this
dissent.
While I agree that the one-year deadline
prescribed by Section 2, Article III of the
Provisional Constitution with respect to the
tenure of government functionaries, as follows:
SECTION 2. All elective and
appointive officials and
employees under the 1973
Constitution shall continue in
office until otherwise provided
by proclamation or executive
order or upon the designation or
appointment and qualification of
their successors, if such
appointment is made within a
period of one year from
February 25, 1986.
was cut short by the ratification of the 1987
Constitution, I entertain serious doubts whether
1987, the date of the plebiscite held to approve
the new Charter. To my mind the 1987
constitution took effect on February 11, 1987,
the date the same was proclaimed ratified
pursuant to Proclamation No. 58 of the President
of the Philippines, and not February 2, 1987,
plebiscite day.
I rely, first and foremost, on the language of the
1987 Charter itself, thus:
Sec. 27. This Constitution shag
take effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite held
for the purpose and shall
supersede all previous
Constitutions.
It is my reading of this provision that the
Constitution takes effect on the date its
ratification shall have been ascertained, and not
at the time the people cast their votes to approve
or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite,
when the will of the people as of that time, had
not, and could not have been, vet determined.
Other than that, pragmatic considerations
compel me to take the view.
I have no doubt that between February 2, and
February 11, 1987 the government performed
338 | PART 1 C O N S T I 1 FULLTEXT
acts that would have been valid under the
Provisional Constitution but would otherwise
have been void under the 1987 Charter. I recall,
in particular, the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals,
and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article
VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar
Council is hereby created under
the supervision of the Supreme
Court composed of the Chief
Justice as ex officio Chairman,
the Secretary of Justice, and a
representative of the Congress
as ex oficio Members, a
representative of the Integrated
Bar, a professor of law, a retired
Member of the Supreme Court,
and a representative of the
private sector.
xxx xxx xxx
Sec. 9. The Members of the
Supreme Court and judges of
lower courts shall be appointed
by the President from a list of at
least three nominees prepared
by the Judicial and Bar Council
for every vacancy, Such
appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious
questions.
Since 1973, moreover, we have invariably
reckoned the effectivity of the Constitution as
well as the amendments thereto from the date it
is proclaimed ratified.
In Magtoto v. Manguera, we held that the 1973 2
Constitution became in force and effect on
January 17, 1973, the date Proclamation No.
1102, "Announcing the Ratification by the
Filipino People of the Constitution Proposed by
the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice,
Teehankee would push its effectivity date further
to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, became 3
final. And this was so notwithstanding Section
16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall
take effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite called
for the purpose and, except as
herein provided, shall
supersede the Constitution of
nineteen-hundred and thirty- five
and all amendments thereto.
On October 27, 1976, then President Marcos
promulgated Proclamation no. 1595, proclaiming
the ratification of the 1976 amendments
submitted in the plebiscite of October 16- 17,
1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I
hereby proclaim all the amendments embodied
in this certificate as duly ratified by the Filipino
people in the referendum- plebiscite held Oct.
16-17, 1976 and are therefore effective and in
full force and effect as of this date.
It shall be noted that under Amendment No. 9 of
the said 1976 amendments.
These amendments shall take
effect after the incumbent
President shall have proclaimed
that they have been ratified by a
majority of the votes cast in the
referendum-plebiscite.
On April 1, 1980, the then Chief Executive
issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the
Amendments of Section 7, Article X of the
Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment
has been duly ratified by a
majority of the votes cast in the
plebiscite held, together with the
election for local officials, on
January 30, 1980, and that said
amendment is hereby declared
to take effect immediately.
It shall be noted that under Resolution No. 21,
dated December 18, 1979, the proposed
amendment shall take effect on the date the
incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was
issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to
the Constitution Embodied in Batas Pambansa
Blg. 122 and Declaring Them Therefore
339 | PART 1 C O N S T I 1 FULLTEXT
Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments
duly approved, further declared them "[e]ffective
and in full force and in effect as of the date of
this Proclamation," It shall be noted, in this
connection, that under Resolutions Nos. I and 2
of the Batasang Pambansa, Third Regular
Session, Sitting as a Constituent Assembly,
which parented these amendments, the same:
. . .shall become valid as part of
the Constitution when approved
by a majority of the votes cast in
a plebiscite to be held pursuant
to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122,
"An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent
Assembly, in its Resolutions Numbered Three,
Two, and One, and to Appropriate Funds
Therefore," provides, as follows:
SEC. 7. The Commission on
Elections, sitting en banc, shad
canvass and proclaim the result
of the plebiscite using the
certificates submitted to it, duly
authenticated and certified by
the Board of Canvassers of
each province or city.
We have, finally, Proclamation No. 2332,
"Proclaiming the Ratification in the Plebiscite of
January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and
113." It states that the amendments:
....are therefore effective and in
full force and effect as of the
date of this Proclamation.
It carries out Resolution no. 104 itself (as well as
Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:
The proposed amendments
shall take effect on the date the
President of the Philippines
shall proclaim that they have
been ratified by a majority of the
votes cast in the plebiscite held
for the purpose, but not later
than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113
provide, that:
These amendments shall be
valid as a part of the
Constitution when approved by
a majority of the votes cast in an
election/plebiscite at which it is
submitted to the people for their
ratification pursuant to Section 2
of Article XVI of the Constitution,
as amended.
That a Constitution or amendments thereto take
effect upon proclamation of their ratification and
not at the time of the plebiscite is a view that is
not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in
Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive application.
Accordingly, when the incumbent President
(Mrs. Corazon C. Aquino) proclaimed on
February 11, 1987, at Malacanang Palace:
... that the Constitution of the
Republic of the Philippines
adopted by the Constitutional
Commission of 1986, including
the Ordinance appended
thereto, has been duly ratified
by the Filipino people and is
therefore effective and in full
force and effect. 4
the 1987 Constitution, in point of fact, came into
force and effect, I hold that it took effect at no
other time.
I submit that our ruling in Ponsica v. Ignalaga in
5
which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does
not in any way weaken this dissent. As I stated,
the remark was said in passing-we did not
resolve the case on account of a categorical
holding that the 1987 Constitution came to life
on February 2, 1987. In any event, if we did, I
now call for its re-examination.
I am therefore of the opinion, consistent with the
views expressed above, that the challenged
dismissals done on February 8, 1987 were valid,
the 1987 Constitution not being then as yet in
force.
340 | PART 1 C O N S T I 1 FULLTEXT
 MR. MAAMBONG. Madam
President, may we now put to a
vote the original formulation of
the committee as indicated in
Section 12, unless there are
Separate Opinions
other commissioners who would
like to present amendments.
TEEHANKEE, CJ., concurring:
MR. DAVIDE. Madam
The main issue resolved in the judgment at bar President.
is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite
for its ratification was held or whether it took THE
effect on February 11, 1987, the date its PRESIDENT. Commissioner
Davide is recognized.
ratification was proclaimed per Proclamation No.
58 of the President of the Philippines, Corazon
C. Aquino. MR. DAVIDE. May I propose the
following amendments.
The Court's decision, with the lone dissent of Mr.
Justice Sarmiento, holds that by virtue of the On line 2, delete the words "its
provision of Article XVIII, Section 27 of the 1987 ratification" and in lieu thereof
Constitution that it "shall take effect immediately insert the following-. "THE
upon its ratification by a majority of the votes PROCLAMATION BY THE
cast in a plebiscite held for the purpose," the PRESIDENT THAT IT HAS
1987 Constitution took effect on February 2, BEEN RATIFIED." And on the
1987, the date of its ratification in the plebiscite last line, after "constitutions,"
held on that same date. add the following: "AND THEIR
AMENDMENTS."
The thrust of the dissent is that the Constitution
should be deemed to "take effect on the date its MR. MAAMBONG. Just a
ratification shall have been ascertained and not moment, Madam President. If
at the time the people cast their votes to approve Commissioner Davide is going
or reject it." This view was actually proposed at to propose an additional
the Constitutional Commission deliberations, but sentence, the committee would
was withdrawn by its proponent in the face of the suggest that we take up first his
"overwhelming" contrary view that the amendment to the first sentence
Constitution "will be effective on the very day of as originally formulated. We are
the plebiscite." now ready to comment on that
proposed amendment.
The record of the proceedings and debates of
the Constitutional Commission fully supports the The proposed amendment
Court's judgment. It shows that the clear, would be to delete the words "its
unequivocal and express intent of the ratification and in lieu thereof
Constitutional Conunission in unanimously insert the words "THE
approving (by thirty-five votes in favor and none PROCLAMATION BY THE
against) the aforequoted Section 27 of PRESIDENT THAT IT HAS
Transitory Article XVIII of the 1987 Constitution BEEN RATIFIED." And the
was that "the act of ratification is the act of second amendment would be:
voting by the people. So that is the date of the After the word "constitutions,"
ratification" and that "the canvass thereafter [of add the words" AND THEIR
the votes] is merely the mathematical AMENDMENTS,"
confirmation of what was done during the date of
the plebiscite and the proclamation of the The committee accepts the first
President is merely the official confirmatory proposed amendment.
declaration of an act which was actually done by However, we regret that we
the Filipino people in adopting the Constitution cannot accept the second
when they cast their votes on the date of the proposed amendment after the
plebiscite." word "constitutions" because
the committee feels that when
The record of the deliberations and the voting is we talk of all previous
reproduced hereinbelow: 1 Constitutions, necessarily it
341 | PART 1 C O N S T I 1 FULLTEXT
includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that
explanation, l will not insist on
the second. But, Madam
President, may I request that I
be allowed to read the second
amendment so the Commission
would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam
President, we can now do that.
MR. DAVIDE. The second
sentence will read: "THE
PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS
FOLLOWING THE
COMPLETION OF THE
CANVASS BY THE
COMMISSION ON ELECTIONS
OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam
President, after conferring with
our chairman, the committee
feels that the second proposed
amendment in the form of a new
sentence would not be exactly
necessary and the committee
feels that it would be too much
for us to impose a time frame on
the President to make the
proclamation. As we would
recall, Madam President, in the
approved Article on the
Executive, there is a provision
which says that the President
shall make certain that all laws
shall be faithfully complied.
When we approve this first
sentence, and it says that there
will be a proclamation by the
President that the Constitution
has been ratified, the President
will naturally comply with the law
in accordance with the
provisions in the Article on the
Executive which we have cited.
It would be too much to impose
on the President a time frame
within which she will make that
declaration. It would be
assumed that the President
would immediately do that after
the results shall have been
canvassed by the COMELEC.
342 | PART 1 C O N S T I
Therefore, the committee
regrets that it cannot accept the
second sentence which the
Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to
withdraw the same on the
assumption that there will be an
immediate proclamation of the
results by the President.
MR. MAAMBONG. With that
understanding, Madam
President.
MR. DAVIDE. I will not insist on
the second sentence.
FR. BERNAS. Madam
President.
THE PRESIDENT.
Commissioner Bernas is
recognized.
FR. BERNAS. I would ask the
committee to reconsider its
acceptance of the amendment
which makes the effectivity of
the new Constitution dependent
upon the proclamation of the
President. The effectivity of the
Constitution should commence
on the date of the ratification,
not on the date of the
proclamation of the President.
What is confusing, I think,
is what happened in 1976 when
the amendments of 1976 were
ratified. In that particular case,
the reason the amendments of
1976 were effective upon the
proclamation of the
President was that the draft
presented to the people said
that the amendment will be
effective upon the proclamation
made by the President. I have a
suspicion that was put in there
precisely to give the President
some kind of leeway on whether
to announce the ratification or
not. Therefore, we should not
make this dependent on the
action of the President since this
will be a manifestation of the act
of the people to be done under
the supervision of the
COMELEC and it should be the
1 FULLTEXT
COMELEC who should make
the announcement that, in fact,
the votes show that the
Constitution was ratified and
there should be no need to wait
for any proclamation on the part
of the President.
MR. MAAMBONG. Would the
Gentleman answer a few
clarificatory questions?
FR. BERNAS. Willingly, Madam
President.
MR. MAAMBONG. The
Gentleman will agree that a date
has to be fixed as to exactly
when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say
that the ratification of the
Constitution is on the date the
votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to
the mechanics of the whole
thing, Madam President. We
present the Constitution to a
plebiscite, the people exercise
their right to vote, then the votes
are canvassed by the
Commission on Elections. If we
delete the suggested
amendment which says: "THE
PROCLAMATION BY THE
PRESIDENT THAT IT HAS
BEEN RATIFIED," what would
be, in clear terms, the date
when the Constitution is
supposed to be ratified or not
ratified, as the case may be?
FR. BERNAS. The date would
be the casting of the ballots. if
the President were to say that
the plebiscite would be held, for
instance, on January 19, 1987,
then the date for the effectivity
of the new Constitution would
be January 19, 1987.
MR. MAAMBONG. In other
words, it would not depend on
the actual issuance of the
results by the Commission on
Elections which will be doing the
343 | PART 1 C O N S T I
canvass? That is immaterial
Madam President
FR. BERNAS. It would not,
Madam President, because
"ratification" is the act of saying
"yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the
date of the plebiscite itself,
Madam President?
FR. BERNAS. Yes, Madam
President.
MR. MAAMBONG. With that
statement of Commissioner
Bernas, we would like to know
from the proponent,
Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam
President, I am insisting on the
amendment because I cannot
subscribe to the view of
Commissioner Bernas, that the
date of the ratification is
reckoned from the date of the
casting of the ballots. That
cannot be the date of reckoning
because it is a plebiscite all over
the country. We do not split the
moment of casting by each of
the voters. Actually and
technically speaking, it would be
all right if it would be upon the
announcement of the results of
the canvass conducted by the
COMELEC or the results of the
plebiscite held all over the
country. But it is necessary that
there be a body which will make
the formal announcement of the
results of the plebiscite. So it is
either the President or the
COMELEC itself upon the
completion of the canvass of the
results of the plebiscite, and I
opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam
President.
THE PRESIDENT.
Commissioner Nolledo is
recognized.
1 FULLTEXT
MR. NOLLEDO. Thank you,
Madam President. I beg to
disagree with Commissioner
Davide. I support the stand of
Commissioner Bernas
because it is really the date of
the casting of the "yes" votes
that is the date of the ratification
of the Constitution The
announcement merely confirms
the ratification even if the results
are released two or three days
after. I think it is a fundamental
principle in political law, even in
civil law, because an
announcement is a mere
confirmation The act of
ratification is the act of voting by
the people. So that is the date of
the ratification. If there should
be any need for presidential
proclamation, that proclamation
will merely confirm the act of
ratification.
Thank you, Madam President.
THE PRESIDENT. Does
Commissioner Regalado want
to contribute?
MR. REGALADO. Madam
President, I was precisely going
to state the same support for
Commissioner Bernas, because
the canvass thereafter is merely
the mathematical
confirmation of what was done
during the date of the plebiscite
and the proclamation of the
President is merely the official
confirmatory declaration of an
act which was actually done by
the Filipino people in adopting
the Constitution when they cast
their votes on the date of the
plebiscite.
MR. LERUM. Madam President,
may I be recognized.
THE PRESIDENT.
Commissioner Lerum is
recognized.
MR. LERUM. I am in favor of
the Davide amendment because
we have to fix a date for the
effectivity of the Constitution.
Suppose the announcement is
344 | PART 1 C O N S T I
delayed by, say, 10 days or a
month, what happens to the
obligations and rights that
accrue upon the approval of the
Constitution? So I think we must
have a definite date. I am,
therefore, in favor of the Davide
amendment.
MR. MAAMBONG. Madam
President.
THE PRESIDENT.
Commissioner Maambong is
recognized.
MR. MAAMBONG. With the
theory of the Commissioner,
would there be a necessity for
the Commission on Elections to
declare the results of the
canvass?
FR. BERNAS. There would be
because it is the Commission on
Elections which makes the
official announcement of the
results.
MR. MAAMBONG. My next
question which is the final one
is: After the Commision on
Elections has declared the
results of the canvass, will there
be a necessity for the President
to make a proclamation of the
results of the canvass as
submitted by the Commission
on Elections?
FR. BERNAS. I would say there
would be no necessity, Madam
President.
MR. MAAMBONG. In other
words, the President may or
may not make the proclamation
whether the Constitution has
been ratified or not.
FR. BERNAS. I would say that
the proclamation made by the
President would be immaterial
because under the law, the
administration of all election
laws is under an independent
Commission on Elections. It is
the Commission on Elections
which announces the results.
1 FULLTEXT
MR. MAAMBONG. But
nevertheless, the President may
make the proclamation.
FR. BERNAS. Yes, the
President may. And if what he
says contradicts what the
Commission on Elections says,
it would have no effect. I would
only add that when we say that
the date of effectivity is on the
day of the casting of the votes,
what we mean is that the
Constitution takes effect on
every single minute and every
single second of that day,
because the Civil Code says a
day has 24 hours.
So that even if the votes are
cast in the morning, the
Constitution is really effective
from the previous midnight. So
that when we adopted the new
rule on citizenship, the children
of Filipino mothers or anybody
born on the date of effectivity of
the 1973 Constitution, which is
January 17, 1973, are natural-
born citizens, no matter what
time of day or night.
MR. MAAMBONG. Could we,
therefore, safely say that
whatever date is the publication
of the results of the canvass by
the COMELEC retroacts to the
date of the plebiscite?
FR. BERNAS. Yes, Madam
President.
MR. MAAMBONG. I thank the
Commissioner.
MR. GUINGONA. Madam
President.
THE PRESIDENT.
Commissioner Guingona is
recognized.
MR. GUINGONA. Mention was
made about the need for having
a definite date. I think it is
precisely the proposal of
Commissioner Bernas which
speaks of the date (of
ratification that would have a
definite date, because there
345 | PART 1 C O N S T I
would be no definite date if we
depend upon the canvassing by
the COMELEC.
Thank you,
THE PRESIDENT.
Commissioner Concepcion is
recognized.
MR. CONCEPCION. Thank you,
Madam President.
Whoever makes the
announcement as to the result
of the plebiscite, be it the
COMELEC or the President,
would announce that a majority
of the votes cast on a given date
was in favor of the Constitution.
And that is the date when the
Constitution takes effect, apart
from the fact that the provision
on the drafting or amendment of
the Constitution provides that a
constitution becomes effective
upon ratification by a majority of
the votes cast, although I would
not say from the very beginning
of the date of election because
as of that time it is impossible to
determine whether there is a
majority. At the end of the day of
election or plebiscite, the
determination is made as of that
time-the majority of the votes
cast in a plebiscite held on such
and such a date. So that is the
time when the new Constitution
will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now
hear Vice-President Padilla.
MR. PADILLA. Madam
President, I am against the
proposed amendment of
Commissioner Davide and I
support the view of
Commissioner Bernas and the
others because the ratification
of the Constitution is on the date
the people, by a majority vote,
have cast their votes in favor of
the Constitution. Even in civil
law, if there is a contract, say,
between an agent and a third
person and that contract is
confirmed or ratified by the
1 FULLTEXT
principal, the validity does not
begin on the date of ratification
but it retroacts from the date the
contract was executed.
Therefore, the date of the
Constitution as ratified should
retroact to the date that the
people have cast their
affirmative votes in favor of the
Constitution.
MR. MAAMBONG. Madam
President.
THE PRESIDENT.
Commissioner Maambong is
recognized
MR. MAAMBONG. We will now
ask once more Commissioner
Davide if he is insisting on his
amendment
MR. DAVIDE. In view of the
explanation and
overwhelming tyranny of
the opinion that it will be
effective on the very day of the
plebiscite, I am withdrawing my
amendment on the assumption
that any of the following bodies
the Office of the President or the
COMELEC will make the formal
announcement of the results.
MR. RAMA. Madam President,
we are now ready to vote on the
original provision as stated by
the committee.
MR. MAAMBONG. The
committee will read again the
formulation indicated in the
original committee report as
Section 12.
This Constitution shall take
effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite called
for the purpose and shall
supersede all previous
Constitutions.
We ask for a vote, Madam
President.
VOTING
THE PRESIDENT. As many as
are in favor, please raise their
hand. (Several Members raised
their hands.)
As many as are against, please
raise their hand. (No Member
raised his hand.)
The results show 35 votes in
favor and none against; Section
12 is approved. 2
The Court next holds as a consequence of its
declaration at bar that the Constitution took
effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the
Provisional Constitution promulgated on March
25, 1986 must be deemed to have been
superseded by the 1987 Constitution on the
same date February 2, 1987 and (2) by and after
said date, February 2, 1987, absent any saying
clause to the contrary in the Transitory Article of
the Constitution, respondent OIC Governor
could no longer exercise the power to replace
petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted
replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of
their successors could no longer produce any
legal force and effect. While the Provisional
Constitution provided for a one-year period
expiring on March 25, 1987 within which the
power of replacement could be exercised, this
period was shortened by the ratification and
effectivity on February 2, 1987 of the
Constitution. Had the intention of the framers of
the Constitution been otherwise, they would
have so provided for in the Transitory Article, as
indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the
incumbent President and Vice-President to noon
of June 30, 1992 for purposes of synchronization
of elections, the continued exercise of legislative
powers by the incumbent President until the
convening of the first Congress, etc.
A final note of clarification, as to the statement in
the dissent that "the appointments of some
seven Court of Appeals Justices, 71 provincial
fiscals and 55 city fiscals reported extended (by)
the President on February 2, 1987 . . . could be
open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of
the Constitution which require prior endorsement
thereof by the Judicial and Bar Council created
under the Constitution. It should be stated for the
record that the reported date of the
appointments, February 2, 1987, is incorrect.
The official records of the Court show that the
346 | PART 1 C O N S T I 1 FULLTEXT
appointments of the seven Court of Appeals
Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on
or before January 31, 1987. (Similarly, the
3
records of the Department of Justice likewise
show that the appointment papers of the last
batch of provincial and city fiscals signed by the
President in completion of the reorganization of
the prosecution service were made on January
31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record
that since February 2, 1987, no appointments to
the Judiciary have been extended by the
President, pending the constitution of the
Judicial and Bar Council, indicating that the
Chief Executive has likewise considered
February 2, 1987 as the effective date of the
Constitution, as now expressly declared by the
Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice
Herrera is able to prove her point with more
telling effect than the tones of thunder. She has
written another persuasive opinion, and I am
delighted to concur. I note that it in effect affirms
my dissents in the De la Serna, Zamora,
Duquing and Bayas cases, where I submitted
that the local OICs may no longer be summarily
replaced, having acquired security of tenure
under the new Constitution. Our difference is
that whereas I would make that right commence
on February 25, 1987, after the deadline set by
the Freedom Constitution, Justice Herrera would
opt for February 2, 1987, when the new
Constitution was ratified. I yield to that better
view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this
dissent.
While I agree that the one-year deadline
prescribed by Section 2, Article III of the
Provisional Constitution with respect to the
tenure of government functionaries, as follows:
SECTION 2. All elective and
appointive officials and
employees under the 1973
Constitution shall continue in
office until otherwise provided
by proclamation or executive
order or upon the designation or
appointment and qualification of
their successors, if such
appointment is made within a
period of one year from
February 25, 1986.
was cut short by the ratification of the 1987
Constitution, I entertain serious doubts whether
or not that cut-off period began on February 2,
1987, the date of the plebiscite held to approve
the new Charter. To my mind the 1987
constitution took effect on February 11, 1987,
the date the same was proclaimed ratified
pursuant to Proclamation No. 58 of the President
of the Philippines, and not February 2, 1987,
plebiscite day.
I rely, first and foremost, on the language of the
1987 Charter itself, thus:
Sec. 27. This Constitution shag
take effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite held
for the purpose and shall
supersede all previous
Constitutions.
It is my reading of this provision that the
Constitution takes effect on the date its
ratification shall have been ascertained, and not
at the time the people cast their votes to approve
or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite,
when the will of the people as of that time, had
not, and could not have been, vet determined.
Other than that, pragmatic considerations
compel me to take the view.
I have no doubt that between February 2, and
February 11, 1987 the government performed
acts that would have been valid under the
Provisional Constitution but would otherwise
have been void under the 1987 Charter. I recall,
in particular, the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals,
and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article
VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar
Council is hereby created under
the supervision of the Supreme
Court composed of the Chief
Justice as ex officio Chairman,
the Secretary of Justice, and a
representative of the Congress
as ex oficio Members, a
representative of the Integrated
Bar, a professor of law, a retired
347 | PART 1 C O N S T I 1 FULLTEXT
 Member of the Supreme Court,
and a representative of the
private sector.
xxx xxx xxx
2Sec. 9. The Members of the
Supreme Court and judges of
lower courts shall be appointed
by the President from a list of at
least three nominees prepared
by the Judicial and Bar Council
for every vacancy, Such
appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious
questions.
Since 1973, moreover, we have invariably
reckoned the effectivity of the Constitution as
well as the amendments thereto from the date it
is proclaimed ratified.
In Magtoto v. Manguera, we held that the 1973
2
Constitution became in force and effect on
January 17, 1973, the date Proclamation No.
1102, "Announcing the Ratification by the
Filipino People of the Constitution Proposed by
the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice,
Teehankee would push its effectivity date further
to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, became
3
final. And this was so notwithstanding Section
16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall
take effect immediately upon its
ratification by a majority of the
votes cast in a plebiscite called
for the purpose and, except as
herein provided, shall
supersede the Constitution of
nineteen-hundred and thirty- five
and all amendments thereto.
On October 27, 1976, then President Marcos
promulgated Proclamation no. 1595, proclaiming
the ratification of the 1976 amendments
submitted in the plebiscite of October 16- 17,
1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I
hereby proclaim all the amendments embodied
in this certificate as duly ratified by the Filipino
people in the referendum — plebiscite held Oct.
16-17, 1976 and are therefore effective and in
full force and effect as of this date.
It shall be noted that under Amendment No. 9 of
the said 1976 amendments.
These amendments shall take
effect after the incumbent
President shall have proclaimed
that they have been ratified by a
majority of the votes cast in the
referendum-plebiscite.
On April 1, 1980, the then Chief Executive
issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the
Amendments of Section 7, Article X of the
Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment
has been duly ratified by a
majority of the votes cast in the
plebiscite held, together with the
election for local officials, on
January 30, 1980, and that said
amendment is hereby declared
to take effect immediately.
It shall be noted that under Resolution No. 21,
dated December 18, 1979, the proposed
amendment shall take effect on the date the
incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was
issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to
the Constitution Embodied in Batas Pambansa
Blg. 122 and Declaring Them Therefore
Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments
duly approved, further declared them "[e]ffective
and in full force and in effect as of the date of
this Proclamation," It shall be noted, in this
connection, that under Resolutions Nos. I and 2
of the Batasang Pambansa, Third Regular
Session, Sitting as a Constituent Assembly,
which parented these amendments, the same:
... shall become valid as part of
the Constitution when approved
by a majority of the votes cast in
a plebiscite to be held pursuant
to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122,
"An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the
348 | PART 1 C O N S T I 1 FULLTEXT
Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent
Assembly, in its Resolutions Numbered Three,
Two, and One, and to Appropriate Funds
Therefore," provides, as follows:
SEC. 7. The Commission on
Elections, sitting en banc, shad
canvass and proclaim the result
of the plebiscite using the
certificates submitted to it, duly
authenticated and certified by
the Board of Canvassers of
each province or city.
We have, finally, Proclamation No. 2332,
"Proclaiming the Ratification in the Plebiscite of
January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and
113." It states that the amendments:
....are therefore effective and in
full force and effect as of the
date of this Proclamation.
It carries out Resolution no. 104 itself (as well as
Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:
The proposed amendments
shall take effect on the date the
President of the Philippines
shall proclaim that they have
been ratified by a majority of the
votes cast in the plebiscite held
for the purpose, but not later
than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113
provide, that:
These amendments shall be valid as a part of
the Constitution when approved by a majority of
the votes cast in an election/plebiscite at which it
is submitted to the people for their ratification
pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take
effect upon proclamation of their ratification and
not at the time of the plebiscite is a view that is
not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in
Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive
application. Accordingly, when the incumbent
President (Mrs. Corazon C. Aquino) proclaimed
on February 11, 1987, at Malacanang Palace:
... that the Constitution of the
Republic of the Philippines
adopted by the Constitutional
Commission of 1986, including
the Ordinance appended
thereto, has been duly ratified
by the Filipino people and is
therefore effective and in full
force and effect. 4
the 1987 Constitution, in point of fact, came into
force and effect, I hold that it took effect at no
other time.
I submit that our ruling in Ponsica v. Ignalaga in
5
which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does
not in any way weaken this dissent. As I stated,
the remark was said in passing-we did not
resolve the case on account of a categorical
holding that the 1987 Constitution came to life
on February 2, 1987. In any event, if we did, I
now call for its re-examination.
I am therefore of the opinion, consistent with the
views expressed above, that the challenged
dismissals done on February 8, 1987 were valid,
the 1987 Constitution not being then as yet in
force.
Footnotes
1 Topacio, Jr. vs. Pimentel G.R.
No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and
Article X, Sections 1, 2, 14,
among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the
Constitutional Commission
Proceedings and Debates,
pages 620-623; emphasis
supplied.
349 | PART 1 C O N S T I 1 FULLTEXT
2 The entire draft Constitution
was approved on October 12,
1986 forty forty-five votes in
favor and two against.

3 The seven Court of Appeals

Justices referred to are Justices
Alfredo L. Benipayo, Minerva G.
Reyes, Magdangal B. Elma,
Cecilio PE, Jesus Elbinias,
Nicolas Lapena Jr. and Justo P.
Torres, Jr., and their
appointments bear various
dates from January 9, 1987 to
January 31, 1987.

Sarmiento, J., dissenting:

1 Manila Bulletin, Feb. 3, 1987,

p. 1, cols. 6-7 Philippine Daily
Inquirer, Feb. 3,1987, p. 1, cot
1; Malaya, Feb. 3, 1987, p. 1,
col. 1.

2 Nos. 3720102 March 3, 1975,

63 SCRA 4 (1975).

3 Nos. L-36142, March 31,

1973, 50 SCRA 30 (1973).

4 Proclamation No. 58 (1987).

5 G.R. No. 72301.

350 | PART 1 C O N S T I 1 FULLTEXT

G.R. No. L-26379 December 27, 1969
WILLIAM C. REAGAN, ETC., petitioner,
vs.
COMMISSIONER OF INTERNAL
REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for
petitioner.
Office of the Solicitor General Antonio P.
Barredo, Assistant Solicitor General Felicisimo
R. Rosete, Solicitor Lolita O. Gal-lang and
Special Attorney Gamaliel H. Mantolino for
respondent.
FERNANDO, J.:
A question novel in character, the answer to
which has far-reaching implications, is raised by
petitioner William C. Reagan, at one time a
civilian employee of an American corporation
providing technical assistance to the United
States Air Force in the Philippines. He would
dispute the payment of the income tax assessed
on him by respondent Commissioner of Internal
Revenue on an amount realized by him on a
sale of his automobile to a member of the United
States Marine Corps, the transaction having
taken place at the Clark Field Air Base at
Pampanga. It is his contention, seriously and
earnestly expressed, that in legal contemplation
the sale was made outside Philippine territory
and therefore beyond our jurisdictional power to
tax.
Such a plea, far-fetched and implausible, on its
face betraying no kinship with reality, he would
justify by invoking, mistakenly as will hereafter
be more fully shown an observation to that effect
in a 1951 opinion, 1 petitioner ignoring that such
utterance was made purely as a flourish of
rhetoric and by way of emphasizing the decision
reached, that the trading firm as purchaser of
army goods must respond for the sales taxes
due from an importer, as the American armed
forces being exempt could not be taxed as such
under the National Internal Revenue
Code.2 Such an assumption, inspired by the
commendable aim to render unavailing any
attempt at tax evasion on the part of such
vendee, found expression anew in a 1962
decision,3 coupled with the reminder however, to
render the truth unmistakable, that "the areas
covered by the United States Military Bases are
not foreign territories both in the political and
geographical sense."
As thus clarified, it is manifest that such a view
amounts at most to a legal fiction and is
moreover obiter. It certainly cannot control the
resolution of the specific question that confronts
us. We declare our stand in an unequivocal
manner. The sale having taken place on what
indisputably is Philippine territory, petitioner's
liability for the income tax due as a result thereof
was unavoidable. As the Court of Tax Appeals
reached a similar conclusion, we sustain its
decision now before us on appeal.
In the decision appealed from, the Court of Tax
Appeals, after stating the nature of the case,
started the recital of facts thus: "It appears that
petitioner, a citizen of the United States and an
employee of Bendix Radio, Division of Bendix
Aviation Corporation, which provides technical
assistance to the United States Air Force, was
assigned at Clark Air Base, Philippines, on or
about July 7, 1959 ... . Nine (9) months
thereafter and before his tour of duty expired,
petitioner imported on April 22, 1960 a tax-free
1960 Cadillac car with accessories valued at
$6,443.83, including freight, insurance and other
charges."4 Then came the following: "On July 11,
1960, more than two (2) months after the 1960
Cadillac car was imported into the Philippines,
petitioner requested the Base Commander,
Clark Air Base, for a permit to sell the car, which
was granted provided that the sale was made to
a member of the United States Armed Forces or
a citizen of the United States employed in the
U.S. military bases in the Philippines. On the
same date, July 11, 1960, petitioner sold his car
for $6,600.00 to a certain Willie Johnson, Jr.
(Private first class), United States Marine Corps,
Sangley Point, Cavite, Philippines, as shown by
a Bill of Sale . . . executed at Clark Air Base. On
the same date, Pfc. Willie (William) Johnson, Jr.
sold the car to Fred Meneses for P32,000.00 as
evidenced by a deed of sale executed in
Manila."5
As a result of the transaction thus made,
respondent Commissioner of Internal Revenue,
after deducting the landed cost of the car as well
as the personal exemption to which petitioner
was entitled, fixed as his net taxable income
arising from such transaction the amount of
P17,912.34, rendering him liable for income tax
in the sum of P2,979.00. After paying the sum,
he sought a refund from respondent claiming
that he was exempt, but pending action on his
request for refund, he filed the case with the
Court of Tax Appeals seeking recovery of the
sum of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only
issue submitted for our resolution is whether or
not the said income tax of P2,979.00 was legally
collected by respondent for petitioner."6 After
discussing the legal issues raised, primarily the
contention that the Clark Air Base "in legal
351 | PART 1 C O N S T I 1 FULLTEXT
contemplation, is a base outside the Philippines"
the sale therefore having taken place on "foreign
soil", the Court of Tax Appeals found nothing
objectionable in the assessment and thereafter
the payment of P2,979.00 as income tax and
denied the refund on the same. Hence, this
appeal predicated on a legal theory we cannot
accept. Petitioner cannot make out a case for
reversal.
1. Resort to fundamentals is unavoidable to
place things in their proper perspective,
petitioner apparently feeling justified in his
refusal to defer to basic postulates of
constitutional and international law, induced no
doubt by the weight he would accord to the
observation made by this Court in the two
opinions earlier referred to. To repeat, scant
comfort, if at all is to be derived from such
an obiter dictum, one which is likewise far from
reflecting the fact as it is.
Nothing is better settled than that the Philippines
being independent and sovereign, its authority
may be exercised over its entire domain. There
is no portion thereof that is beyond its power.
Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein,
and everyone to whom it applies must submit to
its terms. That is the extent of its jurisdiction,
both territorial and personal. Necessarily,
likewise, it has to be exclusive. If it were not
thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its
consent, express or implied, submit to a
restriction of its sovereign rights. There may thus
be a curtailment of what otherwise is a power
plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the
succinct language of Jellinek, "is the property of
a state-force due to which it has the exclusive
capacity of legal self-determination and self-
restriction."7 A state then, if it chooses to, may
refrain from the exercise of what otherwise is
illimitable competence.
Its laws may as to some persons found within its
territory no longer control. Nor does the matter
end there. It is not precluded from allowing
another power to participate in the exercise of
jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that
such areas become impressed with an alien
character. They retain their status as native soil.
They are still subject to its authority. Its
jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to
the American armed forces by virtue of the
military bases agreement of 1947. They are not
and cannot be foreign territory.
Decisions coming from petitioner's native land,
penned by jurists of repute, speak to that effect
with impressive unanimity. We start with the
citation from Chief Justice Marshall, announced
in the leading case of Schooner Exchange v.
M'Faddon,8 an 1812 decision: "The jurisdiction of
the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction
upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the
extent of the restriction, and an investment of
that sovereignty to the same extent in that power
which could impose such restriction." After which
came this paragraph: "All exceptions, therefore,
to the full and complete power of a nation within
its own territories, must be traced up to the
consent of the nation itself. They can flow from
no other legitimate source."
Chief Justice Taney, in an 1857
decision,9 affirmed the fundamental principle of
everyone within the territorial domain of a state
being subject to its commands: "For undoubtedly
every person who is found within the limits of a
government, whether the temporary purposes or
as a resident, is bound by its laws." It is no
exaggeration then for Justice Brewer to stress
that the United States government "is one
having jurisdiction over every foot of soil within
its territory, and acting directly upon each
[individual found therein]; . . ."10
Not too long ago, there was a reiteration of such
a view, this time from the pen of Justice Van
Devanter. Thus: "It now is settled in the United
States and recognized elsewhere that the
territory subject to its jurisdiction includes the
land areas under its dominion and control the
ports, harbors, bays, and other in closed arms of
the sea along its coast, and a marginal belt of
the sea extending from the coast line outward a
marine league, or 3 geographic miles."11 He
could cite moreover, in addition to many
American decisions, such eminent treatise-
writers as Kent, Moore, Hyde, Wilson, Westlake,
Wheaton and Oppenheim.
As a matter of fact, the eminent commentator
Hyde in his three-volume work on International
Law, as interpreted and applied by the United
States, made clear that not even the embassy
premises of a foreign power are to be
considered outside the territorial domain of the
host state. Thus: "The ground occupied by an
embassy is not in fact the territory of the foreign
State to which the premises belong through
possession or ownership. The lawfulness or
unlawfulness of acts there committed is
determined by the territorial sovereign. If an
attache commits an offense within the precincts
352 | PART 1 C O N S T I 1 FULLTEXT
of an embassy, his immunity from prosecution is
not because he has not violated the local law,
but rather for the reason that the individual is
exempt from prosecution. If a person not so
exempt, or whose immunity is waived, similarly
commits a crime therein, the territorial sovereign,
if it secures custody of the offender, may subject
him to prosecution, even though its criminal
code normally does not contemplate the
punishment of one who commits an offense
outside of the national domain. It is not believed,
therefore, that an ambassador himself
possesses the right to exercise jurisdiction,
contrary to the will of the State of his sojourn,
even within his embassy with respect to acts
there committed. Nor is there apparent at the
present time any tendency on the part of States
to acquiesce in his exercise of it."12
2. In the light of the above, the first and crucial
error imputed to the Court of Tax Appeals to the
effect that it should have held that the Clark Air
Force is foreign soil or territory for purposes of
income tax legislation is clearly without support
in law. As thus correctly viewed, petitioner's
hope for the reversal of the decision completely
fades away. There is nothing in the Military
Bases Agreement that lends support to such an
assertion. It has not become foreign soil or
territory. This country's jurisdictional rights
therein, certainly not excluding the power to tax,
have been preserved. As to certain tax matters,
an appropriate exemption was provided for.
Petitioner could not have been unaware that to
maintain the contrary would be to defy reality
and would be an affront to the law. While his first
assigned error is thus worded, he would seek to
impart plausibility to his claim by the ostensible
invocation of the exemption clause in the
Agreement by virtue of which a "national of the
United States serving in or employed in the
Philippines in connection with the construction,
maintenance, operation or defense of the bases
and residing in the Philippines only by reason of
such employment" is not to be taxed on his
income unless "derived from Philippine source
or sources other than the United States
sources."13 The reliance, to repeat, is more
apparent than real for as noted at the outset of
this opinion, petitioner places more faith not on
the language of the provision on exemption but
on a sentiment given expression in a 1951
opinion of this Court, which would be made to
yield such an unwarranted interpretation at war
with the controlling constitutional and
international law principles. At any rate, even if
such a contention were more adequately
pressed and insisted upon, it is on its face
devoid of merit as the source clearly was
Philippine.
In Saura Import and Export Co. v. Meer,14 the
case above referred to, this Court affirmed a
decision rendered about seven months
previously,15 holding liable as an importer, within
the contemplation of the National Internal
Revenue Code provision, the trading firm that
purchased army goods from a United States
government agency in the Philippines. It is easily
understandable why. If it were not thus, tax
evasion would have been facilitated. The United
States forces that brought in such equipment
later disposed of as surplus, when no longer
needed for military purposes, was beyond the
reach of our tax statutes.
Justice Tuason, who spoke for the Court,
adhered to such a rationale, quoting extensively
from the earlier opinion. He could have stopped
there. He chose not to do so. The transaction
having occurred in 1946, not so long after the
liberation of the Philippines, he proceeded to
discuss the role of the American military
contingent in the Philippines as a belligerent
occupant. In the course of such a dissertion,
drawing on his well-known gift for rhetoric and
cognizant that he was making an as if statement,
he did say: "While in army bases or installations
within the Philippines those goods were in
contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the
controlling, decision as to the liability for sales
taxes as an importer by the purchaser, could
have been reached without any need for such
expression as that given utterance by Justice
Tuason. Its value then as an authoritative
doctrine cannot be as much as petitioner would
mistakenly attach to it. It was clearly obiter not
being necessary for the resolution of the issue
before this Court.16 It was an opinion "uttered by
the way."17 It could not then be controlling on the
question before us now, the liability of the
petitioner for income tax which, as announced at
the opening of this opinion, is squarely raised for
the first time.18
On this point, Chief Justice Marshall could again
be listened to with profit. Thus: "It is a maxim,
not to be disregarded, that general expressions,
in every opinion, are to be taken in connection
with the case in which those expressions are
used. If they go beyond the case, they may be
respected, but ought not to control the judgment
in a subsequent suit when the very point is
presented for decision."19
Nor did the fact that such utterance of Justice
Tuason was cited in Co Po v. Collector of
Internal Revenue,20 a 1962 decision relied upon
by petitioner, put a different complexion on the
matter. Again, it was by way of pure
353 | PART 1 C O N S T I 1 FULLTEXT
embellishment, there being no need to repeat it,
to reach the conclusion that it was the purchaser
of army goods, this time from military bases, that
must respond for the advance sales taxes as
importer. Again, the purpose that animated the
reiteration of such a view was clearly to
emphasize that through the employment of such
a fiction, tax evasion is precluded. What is more,
how far divorced from the truth was such
statement was emphasized by Justice Barrera,
who penned the Co Po opinion, thus: "It is true
that the areas covered by the United States
Military Bases are not foreign territories both in
the political and geographical sense."21
Justice Tuason moreover made explicit that
rather than corresponding with reality, what was
said by him was in the way of a legal fiction.
Note his stress on "in contemplation of law." To
lend further support to a conclusion already
announced, being at that a confirmation of what
had been arrived at in the earlier case,
distinguished by its sound appreciation of the
issue then before this Court and to preclude any
tax evasion, an observation certainly not to be
taken literally was thus given utterance.
This is not to say that it should have been
ignored altogether afterwards. It could be utilized
again, as it undoubtedly was, especially so for
the purpose intended, namely to stigmatize as
without support in law any attempt on the part of
a taxpayer to escape an obligation incumbent
upon him. So it was quoted with that end in view
in the Co Po case. It certainly does not justify
any effort to render futile the collection of a tax
legally due, as here. That was farthest from the
thought of Justice Tuason.
What is more, the statement on its face is, to
repeat, a legal fiction. This is not to discount the
uses of a fictio juris in the science of the law. It
was Cardozo who pointed out its value as a
device "to advance the ends of justice" although
at times it could be "clumsy" and even
"offensive".22 Certainly, then, while far from
objectionable as thus enunciated, this
observation of Justice Tuason could be misused
or misconstrued in a clumsy manner to reach an
offensive result. To repeat, properly used, a
legal fiction could be relied upon by the law, as
Frankfurter noted, in the pursuit of legitimate
ends.23 Petitioner then would be well-advised to
take to heart such counsel of care and
circumspection before invoking not a legal fiction
that would avoid a mockery of the law by
avoiding tax evasion but what clearly is a
misinterpretation thereof, leading to results that
would have shocked its originator.
The conclusion is thus irresistible that the crucial
error assigned, the only one that calls for
discussion to the effect that for income tax
purposes the Clark Air Force Base is outside
Philippine territory, is utterly without merit. So we
have said earlier.
3. To impute then to the statement of Justice
Tuason the meaning that petitioner would fasten
on it is, to paraphrase Frankfurter, to be guilty of
succumbing to the vice of literalness. To so
conclude is, whether by design or inadvertence,
to misread it. It certainly is not susceptible of the
mischievous consequences now sought to be
fastened on it by petitioner.
That it would be fraught with such peril to the
enforcement of our tax statutes on the military
bases under lease to the American armed forces
could not have been within the contemplation of
Justice Tuason. To so attribute such a bizarre
consequence is to be guilty of a grave disservice
to the memory of a great jurist. For his real and
genuine sentiment on the matter in consonance
with the imperative mandate of controlling
constitutional and international law concepts was
categorically set forth by him, not as
an obiter but as the rationale of the decision,
in People v. Acierto24 thus: "By the [Military
Bases] Agreement, it should be noted, the
Philippine Government merely consents that the
United States exercise jurisdiction in certain
cases. The consent was given purely as a
matter of comity, courtesy, or expediency over
the bases as part of the Philippine territory or
divested itself completely of jurisdiction over
offenses committed therein."
Nor did he stop there. He did stress further the
full extent of our territorial jurisdiction in words
that do not admit of doubt. Thus: "This provision
is not and can not on principle or authority be
construed as a limitation upon the rights of the
Philippine Government. If anything, it is an
emphatic recognition and reaffirmation of
Philippine sovereignty over the bases and of the
truth that all jurisdictional rights granted to the
United States and not exercised by the latter are
reserved by the Philippines for itself."25
It is in the same spirit that we approach the
specific question confronting us in this litigation.
We hold, as announced at the outset, that
petitioner was liable for the income tax arising
from a sale of his automobile in the Clark Field
Air Base, which clearly is and cannot otherwise
be other than, within our territorial jurisdiction to
tax.
354 | PART 1 C O N S T I 1 FULLTEXT
4. With the mist thus lifted from the situation as it
truly presents itself, there is nothing that stands
in the way of an affirmance of the Court of Tax
Appeals decision. No useful purpose would be
served by discussing the other assigned errors,
petitioner himself being fully aware that if the
Clark Air Force Base is to be considered, as it
ought to be and as it is, Philippine soil or
territory, his claim for exemption from the income
tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves
unable to indulge petitioner in his plea for
reversal. We thus manifest fealty to a
pronouncement made time and time again that
the law does not look with favor on tax
exemptions and that he who would seek to be
thus privileged must justify it by words too plain
to be mistaken and too categorical to be
misinterpreted.26 Petitioner had not done so.
Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax
Appeals of May 12, 1966 denying the refund of
P2,979.00 as the income tax paid by petitioner is
affirmed. With costs against petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar,
Sanchez, Castro and Teehankee, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
Barredo, J., took no part.
Footnotes
1
Saura Import and Export Co. v. Meer,
88 Phil. 199, 202 affirming Go Cheng
Tee v. Meer, 87 Phil. 18 (1950).
2
Sec. 186, National Internal Revenue
Code.
3
Co Po v. Collector of Internal Revenue,
5 SCRA 1057.
4
Decision, Annex 4, Brief for Petitioner-
Appellant, pp. 20-21.
5
Ibid., p. 21.
6
Ibid., p. 23.
7
Jellinek as quoted in Cohen, Recent
Theories of Sovereignty, p. 35 (1937).
8
7 Cranch 116, 136.
9
Brown v. Duchesne, 19 How. 183, 194.
10
In re Debs. 158 US 564 (1894).
Cunard Steamship Co. v. Mellon, 262
11
US 100 (1922).
12
2 Hyde, International Law Chiefly as
Interpreted and Applied by the United
States, pp. 1285-1286 (1947).
13
Act XII of the Military Bases
Agreement, par. 2, reads: "No national
of the United States serving in or
employed in the Philippines in
connection with the construction,
maintenance, operation or defense of
the bases and residing in the Philippines
by reason only of such employment, or
his spouse and minor children and
dependent parents of either spouse,
shall be liable to pay income tax in the
Philippines except in respect of income
derived from Philippine source or
sources other than the United States
sources." (1 Philippine Treaty Series,
357, 362 [1968]).
14
88 Phil. 199 (1951).
15
Go Cheng Tee v. Meer, 87 Phil. 18
(1950).
Uy Po v. Collector of Customs, 34
16
Phil. 153 (1916); Morales v. Paredes, 55
Phil. 565 (1930); Abad v. Carganillo
Vda. de Yance, 95 Phil. 51 (1954).
17
People v. Macadaeg, 91 Phil. 410
(1952).
Cf. de los Reyes v. de Villa, 48 Phil.
18
227 (1925).
19
6 Wheat, 264, 399 (1821) reiterated in
Myers v. United States, 272 US 52,
(1926). Cf. Northern Nat. Bank. v. Porter
Township, 110 US 608 (1884);
Weyerhaeuser v. Hoyt, 219 US 380
(1911); Osaka Shosen Kaisha Line v.
United States, 300 US 98; Wright v.
United States, 302 US 583 (1938);
Green v. United States, 355 US 184
(1957).
20
25 SCRA 1057.
355 | PART 1 C O N S T I 1 FULLTEXT
21
Ibid., p. 1059.

Cardozo, The Paradoxes of Legal

22

Science, 34 (1928).

Nashville C. St. Louis Ry v. Browning,

23

310 US 362 (1940).

24
92 Phil. 534, 542 (1953).

25
Ibid., p. 534.

26
Cf. Commissioner of Internal Revenue
v. Guerrero, 21 SCRA 180 (1967) and
the cases therein cited. See also E.
Rodriguez, Inc. v. Collector of Internal
Revenue, 28 SCRA 1119 (1969).

356 | PART 1 C O N S T I 1 FULLTEXT

 EN BANC
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-
Appellees, vs. NATIONAL COCONUT CORPORATION, ET
AL., Defendants, NATIONAL COCONUT CORPORATION and
BOARD OF LIQUIDATORS, Defendants-Appellants.
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of
the Court of First Instance of Manila. During the pendency of Civil
Case No. 2293 of said court, entitled Francisco Sycip vs. National
Coconut Corporation, Assistant Corporate Counsel Federico
Alikpala, counsel for Defendant, requested said stenographers for
copies of the transcript of the stenographic notes taken by them
during the hearing. Plaintiffs complied with the request by
delivering to Counsel Alikpala the needed transcript containing
714 pages and thereafter submitted to him their bills for the
payment of their fees. The National Coconut Corporation paid the
amount of P564 to Leopoldo T. Bacani and P150 to Mateo A.
Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor
General disallowed the payment of these fees and sought the
recovery of the amounts paid. On January 19, 1953, the Auditor
General required the Plaintiffs to reimburse said amounts on the
strength of a circular of the Department of Justice wherein the
opinion was expressed that the National Coconut Corporation,
being a government entity, was exempt from the payment of the
fees in question. On February 6, 1954, the Auditor General issued
an order directing the Cashier of the Department of Justice to
deduct from the salary of Leopoldo T. Bacani the amount of P25
every payday and from the salary of Mateo A. Matoto the amount
of P10 every payday beginning March 30, 1954. To prevent
deduction of these fees from their salaries and secure a judicial
ruling that the National Coconut Corporation is not a government
entity within the purview of section 16, Rule 130 of the Rules of
Court, this action was instituted in the Court of First Instance of
Manila.
Defendants set up as a defense that the National Coconut
Corporation is a government entity within the purview of section
2 of the Revised Administrative Code of 1917 and, hence, it is
exempt from paying the stenographers’ fees under Rule 130 of
the Rules of Court. After trial, the court found for
the Plaintiffs declaring (1) “that Defendant National Coconut
Corporation is not a government entity within the purview of
section 16, Rule 130 of the Rules of Court; (2) that the
payments already made by said Defendant to Plaintiffs herein and
received by the latter from the former in the total amount of
P714, for copies of the stenographic transcripts in question, are
valid, just and legal; and (3) that Plaintiffs are under no
chan roblesvirtualawlibrary
obligation whatsoever to make a refund of these payments
already received by them.” This is an appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government
of the Philippines is exempt from paying the legal fees provided
for therein, and among these fees are those which stenographers
may charge for the transcript of notes taken by them that may be
requested by any interested person (section 8). The fees in
question are for the transcript of notes taken during the hearing
of a case in which the National Coconut Corporation is interested,
and the transcript was requested by its assistant corporate
counsel for the use of said corporation.
On the other hand, section 2 of the Revised Administrative Code
defines the scope of the term “Government of the Republic of the
Philippines” as follows:
chanroblesvirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which refers
to the corporate governmental entity through which the functions
of government are exercised throughout the Philippine Islands,
including, save as the contrary appears from the context, the
various arms through which political authority is made effective in
said Islands, whether pertaining to the central Government or to
the provincial or municipal branches or other form of local
government.”
The question now to be determined is whether the National
Coconut Corporation may be considered as included in the term
“Government of the Republic of the Philippines” for the purposes
of the exemption of the legal fees provided for in Rule 130 of the
Rules of Court.
As may be noted, the term “Government of the Republic of the
Philippines” refers to a government entity through which the
functions of government are exercised, including the various arms
through which political authority is made effective in the
Philippines, whether pertaining to the central government or to
the provincial or municipal branches or other form of local
government. This requires a little digression on the nature and
functions of our government as instituted in our Constitution.
To begin with, we state that the term “Government” may be
defined as “that institution or aggregate of institutions by which
an independent society makes and carries out those rules of
action which are necessary to enable men to live in a social state,
or which are imposed upon the people forming that society by
those who possess the power or authority of prescribing them”
(U.S. vs. Dorr, 2 Phil., 332). This institution, when referring to the
national government, has reference to what our Constitution has
established composed of three great departments, the legislative,
executive, and the judicial, through which the powers and
functions of government are exercised. These functions are
twofold: constitute and ministrant. The former are those
chanroblesvirtuallawlibrary
which constitute the very bonds of society and are compulsory in
nature; the latter are those that are undertaken only by way of
chan robl esvirtualawlibrary
advancing the general interests of society, and are merely
optional. President Wilson enumerates the constituent functions
as follows:
chanr oblesvirtuallawlibrary
“‘(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
‘(2) The fixing of the legal relations between man and wife and
between parents and children.
‘(3) The regulation of the holding, transmission, and interchange
of property, and the determination of its liabilities for debt or for
crime.
‘(4) The determination of contract rights between individuals.
‘(5) The definition and punishment of crime.
chan roblesvirtualawlibrary
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and
relations of citizens.
‘(8) Dealings of the state with foreign powers: the cha nroblesvirtuallawlibrary
preservation of the state from external danger or encroachment
and the advancement of its international interests.’“ (Malcolm,
The Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are: public cha nroble svirtuallawlibrary
works, public education, public charity, health and safety
regulations, and regulations of trade and industry. The principles
deter mining whether or not a government shall exercise certain
of these optional functions are: (1) that a government should
cha nroble svirtuallawlibrary
do for the public welfare those things which private capital would
not naturally undertake and (2) that a government should do
these things which by its very nature it is better equipped to
administer for the public welfare than is any private individual or
group of individuals. (Malcolm, The Government of the Philippine
Islands, pp. 19-20.)
357 | PART 1 C O N S T I 1 FULLTEXT
From the above we may infer that, strictly speaking, there are
functions which our government is required to exercise to
promote its objectives as expressed in our Constitution and which
are exercised by it as an attribute of sovereignty, and those which
it may exercise to promote merely the welfare, progress and
prosperity of the people. To this latter class belongs the
organization of those corporations owned or controlled by the
government to promote certain aspects of the economic life of
our people such as the National Coconut Corporation. These are
what we call government-owned or controlled corporations which
may take on the form of a private enterprise or one organized
with powers and formal characteristics of a private corporations
under the Corporation Law.
The question that now arises is: Does the fact that these
cha nroble svirtuallawlibrary
and limited signification, it embraces only incorporated villages,
towns and cities. Dunn vs. Court of County Revenues, 85 Ala. 144,
146, 4 So. 661.” (McQuillin, Municipal Corporations, 2nd ed., Vol.
1, p. 385.)
“We may, therefore, define a municipal corporation in its
historical and strict sense to be the incorporation, by the authority
of the government, of the inhabitants of a particular place or
district, and authorizing them in their corporate capacity to
exercise subordinate specified powers of legislation and
regulation with respect to their local and internal concerns. This
power of local government is the distinctive purpose and the
distinguishing feature of a municipal corporation proper.” (Dillon,
Municipal Corporations, 5th ed., Vol. I, p. 59.)

corporation perform certain functions of government make them
a part of the Government of the Philippines?
The answer is simple: they do not acquire that status for the
chanr oblesvirtuallawlibrary
simple reason that they do not come under the classification of
municipal or public corporation. Take for instance the National
Coconut Corporation. While it was organized with the purpose of
“adjusting the coconut industry to a position independent of trade
preferences in the United States” and of providing “Facilities for
the better curing of copra products and the proper utilization of
coconut by-products”, a function which our government has
chosen to exercise to promote the coconut industry, however, it
was given a corporate power separate and distinct from our
government, for it was made subject to the provisions of our
Corporation Law in so far as its corporate existence and the
powers that it may exercise are concerned (sections 2 and 4,
Commonwealth Act No. 518). It may sue and be sued in the same
manner as any other private corporations, and in this sense it is an
entity different from our government. As this Court has aptly said,
“The mere fact that the Government happens to be a majority
stockholder does not make it a public corporation” (National Coal
Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). “By
becoming a stockholder in the National Coal Company, the
Government divested itself of its sovereign character so far as
respects the transactions of the corporation . Unlike the
It is true that under section 8, Rule 130, stenographers may only
charge as fees P0.30 for each page of transcript of not less than
200 words before the appeal is taken and P0.15 for each page
after the filing of the appeal, but in this case the National Coconut
Corporation has agreed and in fact has paid P1.00 per page for the
services rendered by the Plaintiffs and has not raised any
objection to the amount paid until its propriety was disputed by
the Auditor General. The payment of the fees in question became
therefore contractual and as such is valid even if it goes beyond
the limit prescribed in section 8, Rule 130 of the Rules of Court.
As regards the question of procedure raised by Appellants, suffice
it to say that the same is insubstantial, considering that this case
refers not to a money claim disapproved by the Auditor General
but to an action of prohibition the purpose of which is to restrain
the officials concerned from deducting from Plaintiffs’ salaries the
amount paid to them as stenographers’ fees. This case does not
come under section 1, Rule 45 of the Rules of Court relative to
appeals from a decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without
pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador,
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
cralaw

Government, the corporation may be sued without its consent,

and is subject to taxation. Yet the National Coal Company remains
an agency or instrumentality of government.” (Government of the
Philippine Islands vs. Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term “Government of
the Republic of the Philippines” used in section 2 of the Revised
Administrative Code refers only to that government entity
through which the functions of the government are exercised as
an attribute of sovereignty, and in this are included those arms
through which political authority is made effective whether they
be provincial, municipal or other form of local government. These
are what we call municipal corporations. They do not include
government entities which are given a corporate personality
separate and distinct from the government and which are
governed by the Corporation Law. Their powers, duties and
liabilities have to be determined in the light of that law and of
their corporate charters. They do not therefore come within the
exemption clause prescribed in section 16, Rule 130 of our Rules
of Court.
“Public corporations are those formed or organized for the
government of a portion of the State.” (Section 3, Republic Act
No. 1459, Corporation Law).
“‘The generally accepted definition of a municipal corporation
would only include organized cities and towns, and like
organizations, with political and legislative powers for the local,
civil government and police regulations of the inhabitants of the
particular district included in the boundaries of the corporation.’
Heller vs. Stremmel, 52 Mo. 309, 312.”
“In its more general sense the phrase ‘municipal corporation’ may
include both towns and counties, and other public corporations
created by government for political purposes. In its more common
358 | PART 1 C O N S T I 1 FULLTEXT
 EN BANC
G.R. No. L-21484 November 29, 1969
THE AGRICULTURAL CREDIT and
COOPERATIVE FINANCING
ADMINISTRATION (ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION,
ACCFA WORKERS' ASSOCIATION, and THE
COURT OF INDUSTRIAL
RELATIONS, respondents.
Deogracias E. Lerma and Esmeraldo U. Guloy
for petitioner Agricultural Credit and Cooperative
Financing Administration.
Office of the Agrarian Counsel, Department of
Justice for petitioner Agricultural Credit
Administration
J. C. Espinas and Associates for respendents
Confederation of Unions in Government
Corporations Offices, et al. Mariano B. Tuason
for respondent Court of Industrial Relations.
MAKALINTAL, J.:
These are two separate appeals by certiorari
from the decision dated March 25, 1963 (G.R.
No. L-21484) and the order dated May 21, 1964
(G.R. No. L-23605) as affirmed by the
resolutions en banc, of the Court of Industrial
Relations, in Cases Nos. 3450-ULP and 1327-
MC, respectively. The parties, except the
Confederation of Unions in Government
Corporations and Offices (CUGCO), being
practically the same and the principal issues
involved related, only one decision is now
rendered in these two cases.
The Agricultural Credit and Cooperative
Financing Administration (ACCFA) was a
government agency created under Republic Act
No. 821, as amended. Its administrative
machinery was reorganized and its name
changed to Agricultural Credit Administration
(ACA) under the Land Reform Code (Republic
Act No. 3844). On the other hand, the ACCFA
Supervisors' Association (ASA) and the ACCFA
Workers' Association (AWA), hereinafter
referred to as the Unions, are labor
organizations composed of the supervisors and
the rank-and-file employees, respectively, in the
ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining
agreement, which was to be effective for a
period of one (1) year from July 1, 1961, was
entered into by and between the Unions and the
ACCFA. A few months thereafter, the Unions
started protesting against alleged violations and
non-implementation of said agreement. Finally,
on October 25, 1962 the Unions declared a
strike, which was ended when the strikers
voluntarily returned to work on November 26,
1962.
On October 30, 1962 the Unions, together with
its mother union, the Confederation of Unions in
Government Corporations and Offices
(CUGCO), filed a complaint with the Court of
Industrial Relations against the ACCFA (Case
No. 3450-ULP) for having allegedly committed
acts of unfair labor practice, namely: violation of
the collective bargaining agreement in order to
discourage the members of the Unions in the
exercise of their right to self-organization,
discrimination against said members in the
matter of promotions, and refusal to bargain.
The ACCFA denied the charges and interposed
as affirmative and special defenses lack of
jurisdiction of the CIR over the case, illegality of
the bargaining contract, expiration of said
contract and lack of approval by the office of the
President of the fringe benefits provided for
therein. Brushing aside the foregoing defenses,
the CIR in its decision dated March 25, 1963
ordered the ACCFA:
1. To cease and desist from committing
further acts tending to discourage the
members of complainant unions in the
exercise of their right to self-
organization;
2. To comply with and implement the
provision of the collective bargaining
contract executed on September 4,
1961, including the payment of P30.00 a
month living allowance;
3. To bargain in good faith and
expeditiously with the herein
complainants.
The ACCFA moved to reconsider but was turned
down in a resolution dated April 25, 1963 of the
CIR en banc. Thereupon it brought this appeal
by certiorari.
The ACCFA raises the following issues in its
petition, to wit:
1. Whether or not the respondent court
has jurisdiction over this case, which in
turn depends on whether or not ACCFA
exercised governmental or proprietary
functions.
359 | PART 1 C O N S T I 1 FULLTEXT
 2. Whether or not the collective
bargaining agreement between the
petitioner and the respondent union is
valid; if valid, whether or not it has
already lapsed; and if not, whether or
not its (sic) fringe benefits are already
enforceable.
3. Whether or not there is a legal and/or
factual basis for the finding of the
respondent court that the petitioner had
committed acts of unfair labor practice.
4. Whether or not it is within the
competence of the court to enforce the
collective bargaining agreement
between the petitioner and the
respondent unions, the same having
already expired.
G.R. No. L-23605
During the pendency of the above mentioned
case (G.R. No. L-21484), specifically on August
8, 1963, the President of the Philippines signed
into law the Agricultural Land Reform Code
(Republic Act No. 3844), which among other
things required the reorganization of the
administrative machinery of the Agricultural
Credit and Cooperative Financing Administration
(ACCFA) and changed its name to Agricultural
Credit Administration (ACA). On March 17, 1964
the ACCFA Supervisors' Association and the
ACCFA Workers' Association filed a petition for
certification election with the Court of Industrial
Relations (Case No. 1327-MC) praying that they
be certified as the exclusive bargaining agents
for the supervisors and rank-and-file employees,
respectively, in the ACA. The trial Court in its
order dated March 30, 1964 directed the
Manager or Officer-in-Charge of the ACA to
allow the posting of said order "for the
information of all employees and workers
thereof," and to answer the petition. In
compliance therewith, the ACA, while admitting
most of the allegations in the petition, denied
that the Unions represented the majority of the
supervisors and rank-and-file workers,
respectively, in the ACA. It further alleged that
the petition was premature, that the ACA was
not the proper party to be notified and to answer
the petition, and that the employees and
supervisors could not lawfully become members
of the Unions, nor be represented by them.
However, in a joint manifestation of the Unions
dated May 7, 1964, with the conformity of the
ACA Administrator and of the Agrarian Counsel
in his capacity as such and as counsel for the
National Land Reform Council, it was agreed
"that the union petitioners in this case represent
the majority of the employees in their respective
bargaining units" and that only the legal issues
raised would be submitted for the resolution of
the trial Court.
Finding the remaining grounds for ACA's
opposition to the petition to be without merit, the
trial Court in its order dated May 21, 1964
certified "the ACCFA Workers' Association and
the ACCFA Supervisors' Association as the sole
and exclusive bargaining representatives of the
rank-and-file employees and supervisors,
respectively, of the Agricultural Credit
Administration." Said order was affirmed by the
CIR en banc in its resolution dated August 24,
1964.
On October 2, 1964 the ACA filed in this Court a
petition for certiorari with urgent motion to stay
the CIR order of May 21, 1964. In a resolution
dated October 6, 1964, this Court dismissed the
petition for "lack of adequate allegations," but
the dismissal was later reconsidered when the
ACA complied with the formal requirement
stated in said resolution. As prayed for, this
Court ordered the CIR to stay the execution of
its order of May 21, 1964.
In this appeal, the ACA in effect challenges the
jurisdiction of the CIR to entertain the petition of
the Unions for certification election on the
ground that it (ACA) is engaged in governmental
functions. The Unions join the issue on this
single point, contending that the ACA forms
proprietary functions.
Under Section 3 of the Agricultural Land Reform
Code the ACA was established, among other
governmental agencies,1 to extend credit and
similar assistance to agriculture, in pursuance of
the policy enunciated in Section 2 as follows:
SEC. 2. Declaration of Policy. — It is the
policy of the State:
(1) To establish owner-cultivatorships
and the economic family-size farm as
the basis of Philippine agriculture and,
as a consequence, divert landlord
capital in agriculture to industrial
development;
(2) To achieve a dignified existence for
the small farmers free from pernicious
institutional restraints and practices;
(3) To create a truly viable social and
economic structure in agriculture
conducive to greater productivity and
higher farm incomes;
360 | PART 1 C O N S T I 1 FULLTEXT
 (4) To apply all labor laws equally and
without discrimination to both industrial
and agricultural wage earners;
(5) To provide a more vigorous and
systematic land resettlement program
and public land distribution; and
(6) To make the small farmers more
independent, self-reliant and responsible
citizens, and a source of genuine
strength in our democratic society.
The implementation of the policy thus
enunciated, insofar as the role of the ACA
therein is concerned, is spelled out in Sections
110 to 118, inclusive, of the Land Reform Code.
Section 110 provides that "the administrative
machinery of the ACCFA shall be reorganized to
enable it to align its activities with the
requirements and objective of this Code and
shall be known as the Agricultural Credit
Administration." Under Section 112 the sum of
P150,000,000 was appropriated out of national
funds to finance the additional credit functions of
the ACA as a result of the land reform program
laid down in the Code. Section 103 grants the
ACA the privilege of rediscounting with the
Central Bank, the Development Bank of the
Philippines and the Philippine National Bank.
Section 105 directs the loaning activities of the
ACA "to stimulate the development of farmers'
cooperatives," including those "relating to the
production and marketing of agricultural
products and those formed to manage and/or
own, on a cooperative basis, services and
facilities, such as irrigation and transport
systems, established to support production
and/or marketing of agricultural products."
Section 106 deals with the extension by ACA of
credit to small farmers in order to stimulate
agricultural production. Sections 107 to 112 lay
down certain guidelines to be followed in
connection with the granting of loans, such as
security, interest and supervision of credit.
Sections 113 to 118, inclusive, invest the ACA
with certain rights and powers not accorded to
non-governmental entities, thus:
SEC. 113. Auditing of Operations. —
For the effective supervision of farmers'
cooperatives, the head of the
Agricultural Credit Administration shall
have the power to audit their operations,
records and books of account and to
issue subpoena and subpoena duces
tecum to compel the attendance of
witnesses and the production of books,
documents and records in the conduct
of such audit or of any inquiry into their
affairs. Any person who, without lawful
cause, fails to obey such subpoena or
subpoena duces tecum shall, upon
application of the head of Agricultural
Credit Administration with the proper
court, be liable to punishment for
contempt in the manner provided by law
and if he is an officer of the Association,
to suspension or removal from office.
SEC. 114. Prosecution of officials. —
The Agricultural Credit Administration,
through the appropriate provincial or city
fiscal, shall have the power to file and
prosecute any and all actions which it
may have against any and all officials or
employees of farmers' cooperatives
arising from misfeasance or
malfeasance in office.
SEC. 115. Free Notarial Service. — Any
justice of the peace, in his capacity as
notary ex-officio, shall render service
free of charge to any person applying for
a loan under this Code either in
administering the oath or in the
acknowledgment of instruments relating
to such loan.
SEC. 116. Free Registration of Deeds.
— Any register of deeds shall accept for
registration, free of charge any
instrument relative to a loan made under
this Code.
SEC. 117. Writing-off Unsecured and
Outstanding Loans. — Subject to the
approval of the President upon
recommendation of the Auditor General,
the Agricultural Credit Administration
may write-off from its books, unsecured
and outstanding loans and accounts
receivable which may become
uncollectible by reason of the death or
disappearance of the debtor, should
there be no visible means of collecting
the same in the foreseeable future, or
where the debtor has been verified to
have no income or property whatsoever
with which to effect payment. In all
cases, the writing-off shall be after five
years from the date the debtor defaults.
SEC. 118. Exemption from Duties,
Taxes and Levies. — The Agricultural
Credit Administration is hereby
exempted from the payment of all
duties, taxes, levies, and fees, including
docket and sheriff's fees, of whatever
nature or kind, in the performance of its
361 | PART 1 C O N S T I 1 FULLTEXT
 functions and in the exercise of its
powers hereunder.
The power to audit the operations of farmers'
cooperatives and otherwise inquire into their
affairs, as given by Section 113, is in the nature
of the visitorial power of the sovereign, which
only a government agency specially delegated to
do so by the Congress may legally exercise.
On March 19, 1964 Executive Order No. 75 was
promulgated. It is entitled: "Rendering in Full
Force and Effect the Plan of Reorganization
Proposed by the Special Committee on
Reorganization of Agencies for Land Reform for
the Administrative Machinery of the Agricultural
Land Reform Code," and contains the following
pertinent provisions:
Section 3. The Land Reform Project
Administration2 shall be considered a
single organization and the personnel
complement of the member agencies
including the legal officers of the Office
of the Agrarian Counsel which shall
provide legal services to the LRPA shall
be regarded as one personnel pool from
which the requirements of the
operations shall be drawn and subject
only to the civil service laws, rules and
regulations, persons from one agency
may be freely assigned to positions in
another agency within the LRPA when
the interest of the service so demands.
Section 4. The Land Reform Project
Administration shall be considered as
one organization with respect to the
standardization of job descriptions
position classification and wage and
salary structures to the end that
positions involving the same or
equivalent qualifications and equal
responsibilities and effort shall have the
same remuneration.
Section 5. The Civil Service laws, rules
and regulations with respect to
promotions, particularly in the
consideration of person next in rank,
shall be made applicable to the Land
Reform Project Administration as a
single agency so that qualified
individuals in one member agency must
be considered in considering promotion
to higher positions in another member
agency.
The implementation of the land reform program
of the government according to Republic Act No.
3844 is most certainly a governmental, not a
proprietary, function; and for that purpose
Executive Order No. 75 has placed the ACA
under the Land Reform Project Administration
together with the other member agencies, the
personnel complement of all of which are placed
in one single pool and made available for
assignment from one agency to another, subject
only to Civil Service laws, rules and regulations,
position classification and wage structures.
The appointing authority in respect of the
officials and employees of the ACA is the
President of the Philippines, as stated in a 1st
indorsement by his office to the Chairman of the
National Reform Council dated May 22, 1964, as
follows:
Appointments of officials and employees
of the National Land Reform Council
and its agencies may be made only by
the President, pursuant to the provisions
of Section 79(D) of the Revised
Administrative Code. In accordance with
the policy and practice, such
appointments should be prepared for the
signature of the Executive Secretary,
"By Authority ofthe President".3
When the Agricultural Reform Code was being
considered by the Congress, the nature of the
ACA was the subject of the following exposition
on the Senate floor:
Senator Tolentino: . . . . "The ACA is not
going to be a profit making institution. It
is supposed to be a public service of the
government to the lessees and farmer-
owners of the lands that may be bought
after expropriation from owners. It is the
government here that is the lender. The
government should not exact a higher
interest than what we are telling a
private landowner now in his relation to
his tenants if we give to their farmers a
higher rate of interest . . . ." (pp. 17 &
18, Senate Journal No. 16, July 3, 1963)
The reason is obvious, to pinpoint responsibility
for many losses in the government, in order to
avoid irresponsible lending of government
money — to pinpoint responsibility for many
losses . . . .
Senator Manglapus: ". . . But assuming
that hypothesis, that is the reason why
we are appropriating P150,000,000.00
for the Agricultural Credit Administration
which will go to intensified credit
362 | PART 1 C O N S T I 1 FULLTEXT
 operations on the barrio level . . ." (p. 3,
Senate Journal No. 7).
That it is the reason why we are providing for the
expansion of the ACCFA and the weeding out of
the cooperative activity of the ACCFA and
turning this over to the Agricultural Productivity
Commission, so that the Agricultural Credit
Administration will concentrate entirely on the
facilitation of credit on the barrio level with the
massive support of 150 million provided by the
government. . . . (pp. 4 & 5 of Senate Journal
No. 7, July 3, 1963)
. . . But by releasing them from this situation, we
feel that we are putting them in a much better
condition than that in which they are found by
providing them with a business-like way of
obtaining credit, not depending on a paternalistic
system but one which is business-like — that is
to say, a government office, which on the barrio
level will provide them that credit directly . . . . (p.
40, Senate Journal No. 7, July 3, 1963)
(emphasis supplied).
The considerations set forth above militate quite
strongly against the recognition of collective
bargaining powers in the respondent Unions
within the context of Republic Act No. 875, and
hence against the grant of their basic petition for
certification election as proper bargaining units.
The ACA is a government office or agency
engaged in governmental, not proprietary
functions. These functions may not be strictly
what President Wilson described as
"constituent" (as distinguished from
"ministrant"),4 such as those relating to the
maintenance of peace and the prevention of
crime, those regulating property and property
rights, those relating to the administration of
justice and the determination of political duties of
citizens, and those relating to national defense
and foreign relations. Under this traditional
classification, such constituent functions are
exercised by the State as attributes of
sovereignty, and not merely to promote the
welfare, progress and prosperity of the people —
these letter functions being ministrant he
exercise of which is optional on the part of the
government.
The growing complexities of modern society,
however, have rendered this traditional
classification of the functions of government
quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and
initiative and which the government was called
upon to enter optionally, and only "because it
was better equipped to administer for the public
welfare than is any private individual or group of
individuals,"5 continue to lose their well-defined
boundaries and to be absorbed within activities
that the government must undertake in its
sovereign capacity if it is to meet the increasing
social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly
towards a greater socialization of economic
forces. Here of course this development was
envisioned, indeed adopted as a national policy,
by the Constitution itself in its declaration of
principle concerning the promotion of social
justice.
It was in furtherance of such policy that the Land
Reform Code was enacted and the various
agencies, the ACA among them, established to
carry out its purposes. There can be no dispute
as to the fact that the land reform program
contemplated in the said Code is beyond the
capabilities of any private enterprise to translate
into reality. It is a purely governmental function,
no less than, say, the establishment and
maintenance of public schools and public
hospitals. And when, aside from the
governmental objectives of the ACA, geared as
they are to the implementation of the land reform
program of the State, the law itself declares that
the ACA is a government office, with the
formulation of policies, plans and programs
vested no longer in a Board of Governors, as in
the case of the ACCFA, but in the National Land
Reform Council, itself a government
instrumentality; and that its personnel are
subject to Civil Service laws and to rules of
standardization with respect to positions and
salaries, any vestige of doubt as to the
governmental character of its functions
disappears.
In view of the foregoing premises, we hold that
the respondent Unions are not entitled to the
certification election sought in the Court below.
Such certification is admittedly for purposes of
bargaining in behalf of the employees with
respect to terms and conditions of employment,
including the right to strike as a coercive
economic weapon, as in fact the said unions did
strike in 1962 against the ACCFA (G.R. No. L-
21824).6 This is contrary to Section 11 of
Republic Act No. 875, which provides:
SEC. 11. Prohibition Against Strike in
the Government — The terms and
conditions of employment in the
Government, including any political
subdivision or instrumentality thereof,
are governed by law and it is declared to
be the policy of this Act that employees
therein shall not strike for the purposes
of securing changes or modification in
their terms and conditions of
employment. Such employees may
363 | PART 1 C O N S T I 1 FULLTEXT
 belong to any labor organization which
does not impose the obligation to strike
or to join in strike: Provided, However,
that this section shall apply only to
employees employed in governmental
functions of the Government including
but not limited to governmental
corporations.7
With the reorganization of the ACCFA and its
conversion into the ACA under the Land Reform
Code and in view of our ruling as to the
governmental character of the functions of the
ACA, the decision of the respondent Court dated
March 25, 1963, and the resolution en banc
affirming it, in the unfair labor practice case filed
by the ACCFA, which decision is the subject of
the present review in G. R. No. L-21484, has
become moot and academic, particularly insofar
as the order to bargain collectively with the
respondent Unions is concerned.
What remains to be resolved is the question of
fringe benefits provided for in the collective
bargaining contract of September 4, 1961. The
position of the ACCFA in this regard is that the
said fringe benefits have not become
enforceable because the condition that they
should first be approved by the Office of the
President has not been complied with. The
Unions, on the other hand, contend that no such
condition existed in the bargaining contract, and
the respondent Court upheld this contention in
its decision.
It is to be listed that under Section 3, Article XIV,
of the agreement, the same "shall not become
effective unless and until the same is duly
ratified by the Board of Governors of the
Administration." Such approval was given even
before the formal execution of the agreement, by
virtue of "Resolution No. 67, Regular Meeting
No. 7, FY 1960-61, held on August 17, 1961,"
but with the proviso that "the fringe benefits
contained therein shall take effect only if
approved by the office of the President." The
condition is, therefore, deemed to be
incorporated into the agreement by reference.
On October 23, 1962 the Office of the President,
in a letter signed by the Executive Secretary,
expressed its approval of the bargaining contract
"provided the salaries and benefits therein fixed
are not in conflict with applicable laws and
regulations, are believed to be reasonable
considering the exigencies of the service and the
welfare of the employees, and are well within the
financial ability of the particular corporation to
bear."
On July 1, 1963 the ACCFA management and
the Unions entered into an agreement for the
implementation of the decision of the respondent
Court concerning the fringe benefits, thus:
In the meantime, only Cost of Living
Adjustment, Longevity Pay, and Night
Differential Benefits accruing from July
1, 1961 to June 30, 1963 shall be paid
to all employees entitled thereto, in the
following manner:
A) The sum of P180,000 shall be set
aside for the payment of:
1) Night differential benefits for Security
Guards.
2) Cost of Living Adjustment and
Longevity Pay.
3) The unpaid balance due employees
on Item A (1) and (2) this paragraph
shall be paid in monthly installments as
finances permit but not beyond
December 20, 1963.
3. All benefits accruing after July 1,
1963, shall be allowed to accumulate
but payable only after all benefits
accruing up to June 30, 1963, as per
CIR decision hereinabove referred to
shall have been settled in full; provided,
however, that commencing July 1, 1963
and for a period of only two (2) months
thereafter (during which period the
ACCFA and the Unions shall negotiate a
new Collective Bargaining Agreement)
the provisions of the September 4, 1961
Collective Bargaining Agreement shall
be temporarily suspended, except as to
Cost of Living Adjustment and "political"
or non-economic privileges and benefits
thereunder.
On July 24, 1963 the ACCFA Board of
Governors ratified the agreement thus entered
into, pursuant to the provision thereof requiring
such ratification, but with the express
qualification that the same was "without
prejudice to the pending appeal in the Supreme
Court . . . in Case No. 3450-ULP." The payment
of the fringe benefits agreed upon, to our mind,
shows that the same were within the financial
capability of the ACCFA then, and hence
justifies the conclusion that this particular
condition imposed by the Office of the President
in its approval of the bargaining contract was
satisfied.
364 | PART 1 C O N S T I 1 FULLTEXT
We hold, therefore, that insofar as the fringe
benefits already paid are concerned, there is no
reason to set aside the decision of the
respondent Court, but that since the respondent
Unions have no right to the certification election
sought by them nor, consequently, to bargain
collectively with the petitioner, no further fringe
benefits may be demanded on the basis of any
collective bargaining agreement.
The decisions and orders appealed from are set
aside and/or modified in accordance with the
foregoing pronouncements. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon,
Sanchez, Castro, Teehankee and Barredo,
JJ., concur.
Zaldivar, J., concurs in the result.
Separate Opinions
FERNANDO, J., concurring:
The decision reached by this Court so ably given
expression in the opinion of Justice Makalintal,
characterized with vigor, clarity and precision,
represents what for me is a clear tendency not to
be necessarily bound by our previous
pronouncements on what activities partake of a
nature that is governmental.1 Of even greater
significance, there is a definite rejection of the
"constituent-ministrant" criterion of governmental
functions, followed in Bacani v. National Coconut
Corporation.2 That indeed is cause for
gratification. For me at least, there is again full
adherence to the basic philosophy of the
Constitution as to the extensive and vast power
lodged in our government to cope with the social
and economic problems that even now sorely
beset us. There is therefore full concurrence on
my part to the opinion of the Court, distinguished
by its high quality of juristic craftsmanship. I feel
however that the matter is of such vital
importance that a separate concurring opinion is
not inappropriate. It will also serve to give
expression to my view, which is that of the Court
likewise, that our decision today does not pass
upon the rights of labor employed in
instrumentalities of the state discharging
governmental functions.
1. In the above Bacani decision, governmental
functions are classified into constituent and
ministrant. "The former are those which
constitute the very bonds of society and are
compulsory in nature; the latter are those that
are undertaken only by way of advancing the
general interests of society, and are merely
optional. President Wilson enumerates the
constituent functions as follows: '(1) The keeping
of order and providing for the protection of
persons and property from violence and robbery.
(2) The fixing of the legal relations between man
and wife and between parents and children. (3)
The regulation of the holding, transmission, and
interchange of property, and the determination of
its liabilities for debt or for crime. (4) The
determination of contract rights between
individuals. (5) The definition and punishment of
crime. (6) The administration of justice in civil
cases. (7) The determination of the political
duties, privileges, and relations of citizens. (8)
Dealings of the state with foreign powers: the
preservation of the state from external danger or
encroachment and the advancement of its
international interests.' "3
The ministrant functions were then enumerated,
followed by a statement of the basis that would
justify engaging in such activities. Thus: "The
most important of the ministrant functions are:
public works, public education, public charity,
health and safety regulations, and regulations of
trade and industry. The principles determining
whether or not a government shall exercise
certain of these optional functions are: (1) that a
government should do for the public welfare
those things which private capital would not
naturally undertake and (2) that a government
should do these things which by its very nature it
is better equipped to administer for the public
welfare than is any private individual or group of
individuals."4
Reference is made in the Bacani decision to the
first of the many publications of Justice Malcolm
on the Philippine government, which appeared in
1916,5 adopting the formulation of the then
Professor, later President, Woodrow Wilson of
the United States, in a textbook on political
science the first edition of which was published
in 1898. The Wilson classification reflected the
primacy of the dominant laissez-faire concept
carried into the sphere of government.
A most spirited defense of such a view was
given by former President Hadley of Yale in a
series of three lectures delivered at Oxford
University in 1914. According to President
Hadley: "I shall begin with a proposition which
may sound somewhat startling, but which I
believe to be literally true. The whole American
political and social system is based on industrial
property right, far more completely than has ever
been the case in any European country. In every
nation of Europe there has been a certain
amount of traditional opposition between the
government and the industrial classes. In the
365 | PART 1 C O N S T I 1 FULLTEXT
United States no such tradition exists. In the
public law of European communities industrial
freeholding is a comparatively recent
development. In the United States, on the
contrary, industrial freeholding is the foundation
on which the whole social order has been
established and built up."6
The view is widely accepted that such a
fundamental postulate did influence American
court decisions on constitutional law. As was
explicitly stated by Justice Cardozo, speaking of
that era: "Laissez-faire was not only a counsel of
caution which statesmen would do well to heed.
It was a categorical imperative which statesmen
as well as judges, must obey."7 For a long time,
legislation tending to reduce economic inequality
foundered on the rock that was the due process
clause, enshrining as it did the liberty of contract.
To cite only one instance, the limitation of
employment in bakeries to sixty hours a week
and ten hours a day under a New York statute
was stricken down for being tainted with a due
process objection in Lochner v. New York.8 It
provoked one of the most vigorous dissents of
Justice Holmes, who was opposed to the view
that the United States Constitution did
embody laissez-faire. Thus: "General
propositions do not decide concrete cases. The
decision will depend on a judgment or intuition
more subtle than any articulate major premise.
But I think that the proposition just stated, if it is
accepted, will carry us far toward the end. Every
opinion tends to become a law. I think that the
word 'liberty,' in the 14th Amendment, is
perverted when it is held to prevent the natural
outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily
would admit that the statute proposed would
infringe fundamental principles as they have
been understood by the traditions of our people
and our law. It does not need research to show
that no such sweeping condemnation can be
passed upon the statute before us. A reasonable
man might think it a proper measure on the
score of health. Men whom I certainly could not
pronounce unreasonable would uphold it as a
first installment of a general regulation of the
hours of work. Whether in the latter aspect it
would be open to the charge of inequality I think
it unnecessary to discuss." It was not until 1908,
in Muller v. Oregon,9 that the American Supreme
Court held valid a ten-hour maximum for women
workers in laundries and not until 1917
in Bunting v. Oregon10 that such a regulatory ten-
hour law applied to men and women passed the
constitutional test.
Similarly, state legislation fixing minimum wages
was deemed offensive to the due process clause
in a 1923 decision in Adkins v. Children's
Hospital.11 Only in 1937, in the leading case
of West Coast Hotel v. Parrish,12 was the Adkins
case overruled and a minimum wage law New
York statute upheld. The same unsympathetic
attitude arising from the laissez-faire concept
was manifest in decisions during such period,
there being the finely-spun distinctions in
the Wolff Packing Co. v. Court of Industrial
Relations13 decision, as to when certain
businesses could be classified as affected with
public interest to justify state regulation as to
prices. After eleven years, in 1934, in Nebbia v.
New York,14 the air of unreality was swept away
by this explicit pronouncement from the United
States Supreme Court: "The phrase 'affected
with a public interest' can, in the nature of things,
mean no more than that an industry, for
adequate reason, is subject to control for the
public good."
It is thus apparent that until the administration of
President Roosevelt, the laissez-faire principle
resulted in the contraction of the sphere where
governmental entry was permissible. The object
was to protect property even if thereby the
needs of the general public would be left
unsatisfied. This was emphatically put forth in a
work of former Attorney General, later Justice,
Jackson, citing an opinion of Judge Van Orsdel.
Thus: "It should be remembered that of the three
fundamental principles which underlie
government, and for which government exists,
the protection of life, liberty, and property,
the chief of these is property . . . ."15 The above
excerpt from Judge Van Orsdel forms part of his
opinion in Children's Hospital v. Adkins, when
decided by the Circuit Court of Appeals.16
Nonetheless, the social and economic forces at
work in the United States to which the new deal
administration of President Roosevelt was most
responsive did occasion, as of 1937, greater
receptivity by the American Supreme Court to a
philosophy less rigid in its obeisance to property
rights. Earlier legislation deemed offensive to
the laissez-faire concept had met a dismal fate.
Their nullity during his first term could, more
often than not, be expected.17
As a matter of fact, even earlier, in 1935,
Professor Coker of Yale, speaking as a
historian, could already discern a contrary drift.
Even then he could assert that the range of
governmental activity in the United States had
indeed expanded. According to him: "Thus both
liberals and conservatives approve wide and
varied governmental intervention; the latter
condemning it, it is true, when the former
propose it, but endorsing it, after it has become
a fixed part of the status quo, as so beneficial in
its effects that no more of it is needed. Our
366 | PART 1 C O N S T I 1 FULLTEXT
history for the last half-century shows that each
important governmental intervention we have
adopted has been called socialistic or
communistic by contemporary conservatives,
and has later been approved by equally
conservative men who now accept it both for its
proved benefits and for the worthy traditions it
has come to represent. Both liberal and
conservative supporters of our large-scale
business under private ownership advocate or
concede the amounts and kinds of governmental
limitation and aid which they regard as
necessary to make the system work efficiently
and humanely. Sooner or later, they are willing
to have government intervene for the purpose of
preventing the system from being too oppressive
to the masses of the people, protecting it from its
self-destructive errors, and coming to its help in
other ways when it appears not to be able to
take care of itself."18
At any rate, by 1943, the United States was
reconciled to laissez-faire having lost its
dominance. In the language of Justice Jackson
in the leading case of West Virginia State Board
of Education v. Barnette:19 "We must transplant
these rights to a soil in which the laissez-faire
concept or principle of non-interference has
withered at least as to economic affairs, and
social advancements are increasingly sought
through closer integration of society and through
expanded and strengthened governmental
controls."
2. The influence exerted by American
constitutional doctrines unavoidable when the
Philippines was still under American rule
notwithstanding, an influence that has not
altogether vanished even after independence,
the laissez-faire principle never found full
acceptance in this jurisdiction, even during the
period of its full flowering in the United States.
Moreover, to erase any doubts, the
Constitutional Convention saw to it that our
fundamental law embodies a policy of the
responsibility thrust on government to cope with
social and economic problems and an earnest
and sincere commitment to the promotion of the
general welfare through state action. It would
thus follow that the force of any legal objection to
regulatory measures adversely affecting
property rights or to statutes organizing public
corporations that may engage in competition
with private enterprise has been blunted. Unless
there be a clear showing of any invasion of
rights guaranteed by the Constitution, their
validity is a foregone conclusion. No fear need
be entertained that thereby spheres hitherto
deemed outside government domain have been
enchroached upon. With our explicit disavowal
of the "constituent-ministrant" test, the ghost of
the laissez-faire concept no longer stalks the
juridical stage.
As early as 1919, in the leading case of Rubi V.
Provincial Board of Mindoro,20 Justice Malcolm
already had occasion to affirm: "The doctrines
of laissez-faire and of unrestricted freedom of
the individual, as axioms of economic and
political theory, are of the past. The modern
period has shown a widespread belief in the
amplest possible demonstration of governmental
activity. The Courts unfortunately have
sometimes seemed to trail after the other two
branches of the Government in this progressive
march."
It was to be expected then that when he spoke
for the Court in Government of the Philippine
Islands v. Springer,21 a 1927 decision, he found
nothing objectionable in the government itself
organizing and investing public funds in such
corporations as the National Coal Co., the Phil.
National Bank, the National Petroleum Co., the
National Development Co., the National Cement
Co. and the National Iron Co. There was not
even a hint that thereby the laissez-faire concept
was not honored at all. It is true that Justice
Malcolm concurred with the majority in People v.
Pomar,22 a 1924 opinion, which held invalid
under the due process clause a provision
providing for maternity leave with pay thirty days
before and thirty days after confinement. It could
be that he had no other choice as the Philippines
was then under the United States, and only
recently the year before, the above-cited case
of Adkins v. Children's Hospital,23 in line with
the laissez-faire principle, did hold that a statute
providing for minimum wages was
constitutionally infirm on the same ground.
Our constitution which took effect in 1935, upon
the inauguration of the Commonwealth of the
Philippines, erased whatever doubts there might
be on that score. Its philosophy is antithetical to
the laissez-faire concept. Delegate, later
President, Manuel Roxas, one of the leading
members of the Constitutional Convention, in
answer precisely to an objection of Delegate
Jose Reyes of Sorsogon, who noted the "vast
extensions in the sphere of governmental
functions" and the "almost unlimited power to
interfere in the affairs of industry and agriculture
as well as to compete with existing business" as
"reflections of the fascination exerted by [the
then] current tendencies" in other
jurisdictions,24 spoke thus: "My answer is that
this constitution has a definite and well defined
philosophy, not only political but social and
economic. A constitution that in 1776 or in 1789
was sufficient in the United States, considering
the problems they had at that time, may not now
367 | PART 1 C O N S T I 1 FULLTEXT
be sufficient with the growing and ever-widening
complexities of social and economic problems
and relations. If the United States of America
were to call a constitutional convention today to
draft a constitution for the United States, does
any one doubt that in the provisions of that
constitution there will be found definite
declarations of policy as to economic
tendencies; that there will be matters which are
necessary in accordance with the experience of
the American people during these years when
vast organizations of capital and trade have
succeeded to a certain degree to control the life
and destiny of the American people? If in this
constitution the gentleman will find declarations
of economic policy, they are there because they
are necessary to safeguard the interests and
welfare of the Filipino people because we
believe that the days have come when in self-
defense, a nation may provide in its constitution
those safeguards, the patrimony, the freedom to
grow, the freedom to develop national
aspirations and national interests, not to be
hampered by the artificial boundaries which a
constitutional provision automatically imposes."25
Delegate Roxas continued further: "The
government is the creature of the people and the
government exercises its powers and functions
in accordance with the will and purposes of the
people. That is the first principle, the most
important one underlying this document.
Second, the government established in this
document is, in its form, in our opinion, the most
adapted to prevailing conditions, circumstances
and the political outlook of the Filipino people.
Rizal said, 'Every people has the kind of
government that they deserve.' That is just
another form of expressing the principle in
politics enunciated by the French philosophers
when they said: 'Every people has the right to
establish the form of government which they
believe is most conducive to their welfare and
their liberty.' Why have we preferred the
government that is established in this draft?
Because it is the government with which we are
familiar. It is the form of government
fundamentally such as it exists today; because it
is the only kind of government that our people
understand; it is the kind of government we have
found to be in consonance with our experience,
with the necessary modification, capable of
permitting a fair play of social forces and
allowing the people to conduct the affairs of that
government."26
One of the most prominent delegates, a leading
intellectual, former President Rafael Palma of
the University of the Philippines, stressed as a
fundamental principle in the draft of the
Constitution the limitation on the right to
property. He pointed out that the then prevailing
view allowed the accumulation of wealth in one
family down to the last remote descendant,
resulting in a grave disequilibrium and bringing
in its wake extreme misery side by side with
conspicuous luxury. He did invite attention to the
few millionaires at one extreme with the vast
masses of Filipinos deprived of the necessities
of life at the other. He asked the Convention
whether the Filipino people could long remain
indifferent to such a deplorable situation. For him
to speak of a democracy under such
circumstances would be nothing but an illusion.
He would thus emphasize the urgent need to
remedy the grave social injustice that had
produced such widespread impoverishment,
thus recognizing the vital role of government in
this sphere.27
Another delegate, Tomas Confesor of Iloilo, was
quite emphatic in his assertion for the need of a
social justice provision which is a departure from
the laissez-faire principle. Thus: "Take the case
of the tenancy system in the Philippines. You
have a tenant. There are hundreds of thousands
of tenants working day in and day out, cultivating
the fields of their landlords. He puts all his time,
all his energy, the labor and the assistance of his
wife and children, in cultivating a piece of ground
for his landlord but when the time comes for the
partition of the products of his toil what
happens? If he produces 25 cavanes of rice, he
gets only perhaps five and the twenty goes to
the landlord. Now can he go to court? Has he a
chance to go to court in order to secure his just
share of the products of his toil? No. Under our
present regime of law, under our present regime
of justice, you do not give that to the poor tenant.
Gentlemen, you go to the Cagayan Valley and
see the condition under which those poor
farmers are being exploited day in and day out.
Can they go to court under our present regime of
justice, of liberty, or democracy? The other day,
workmen were shot by the police just because
they wanted to increase or they desired that their
wages be increased from thirty centavos a day
to forty or fifty centavos. Is it necessary to spill
human blood just to secure an increase of ten
centavos in the daily wages of an ordinary
laborer? And yet under our present regime of
social justice, liberty and democracy, these
things are happening; these things, I say, are
happening. Are those people getting any justice?
No. They cannot get justice now from our courts.
For this reason, I say it is necessary that we
insert 'social justice' here and that social justice
must be established by law. Proper legal
provisions, proper legal facilities must be
provided in order that there be a regime not of
justice alone, because we have that now and we
are seeing the oppression arising from such a
368 | PART 1 C O N S T I 1 FULLTEXT
regime. Consequently, we must emphasize the
term 'social justice'."28
Delegate Ventenilla of Pangasinan reflected the
attitude of the Convention as to why laissez-
faire was no longer acceptable. After speaking of
times having changed, he proceeded: "Since
then new problems have arisen. The spiritual
mission of government has descended to the
level of the material. Then its function was
primarily to soothe the aching spirit. Now, it
appears, it must also appease hunger. Now that
we may read history backwards, we know for
instance, that the old theory of 'laissez-faire' has
degenerated into 'big business affairs' which are
gradually devouring the rights of the people —
the same rights intended to be guarded and
protected by the system of constitutional
guaranties. Oh, if the Fathers were now alive to
see the changes that the centuries have wrought
in our life! They might contemplate the sad
spectacle of organized exploitation greedily
devouring the previous rights of the individual.
They might also behold the gradual
disintegration of society, the fast disappearance
of the bourgeois — the middle class, the
backbone of the nation — and the consequent
drifting of the classes toward the opposite
extremes — the very rich and the very poor."29
Shortly after the establishment of the
Commonwealth, the then Justice Jose P. Laurel,
himself one of the foremost delegates of the
Constitutional Convention, in a concurring
opinion, later quoted with approval in the leading
case of Antamok Goldfields Mining Co. v. Court
of Industrial Relations,30 decided in 1940,
explained clearly the need for the repudiation of
the laissez-faire doctrine. Thus: "It should be
observed at the outset that our Constitution was
adopted in the midst of surging unrest and
dissatisfaction resulting from economic and
social distress which was threatening the
stability of governments the world over. Alive to
the social and economic forces at work, the
framers of our Constitution boldly met the
problems and difficulties which faced them and
endeavored to crystallize, with more or less
fidelity, the political, social and economic
propositions of their age, and this they did, with
the consciousness that the political and
philosophical aphorism of their generation will, in
the language of a great jurist, 'be doubted by the
next and perhaps entirely discarded by the third.'
. . . Embodying the spirit of the present epoch,
general provisions were inserted in the
Constitution which are intended to bring about
the needed social and economic equilibrium
between component elements of society through
the application of what may be termed as
the justitia communis advocated by Grotius and
Leibnits many years ago to be secured through
the counterbalancing of economic and social
forces and opportunities which should be
regulated, if not controlled, by the State or
placed, as it were, in custodia societatis. 'The
promotion of social justice to insure the well-
being and economic security of all the people'
was thus inserted as vital principle in our
Constitution. ... ."31 In the course of such
concurring opinion and after noting the changes
that have taken place stressing that the policy
of laissez-faire had indeed given way to the
assumption by the government of the right to
intervene although qualified by the phrase "to
some extent", he made clear that the doctrine
in People v. Pomar no longer retain, "its virtuality
as a living principle."32
3. It must be made clear that the objection to the
"constituent-ministrant" classification of
governmental functions is not to its formulation
as such. From the standpoint of law as logic, it is
not without merit. It has neatness and symmetry.
There are hardly any loose ends. It has the
virtue of clarity. It may be said in its favor
likewise that it reflects all-too-faithfully
the laissez-faire notion that government cannot
extend its operation outside the maintenance of
peace and order, protection against external
security, and the administration of justice, with
private rights, especially so in the case of
property, being safeguarded and a hint that the
general welfare is not to be entirely ignored.
It must not be lost sight of though that logic and
jural symmetry while undoubtedly desirable are
not the prime consideration. This is especially so
in the field of public law. What was said by
Holmes, almost nine decades ago, carry greater
conviction now. "The life of the law has not been
logic; it has been experience. The felt
necessities of the time, the prevalent moral and
political theories, intuitions of public policy
avowed or unconscious, even the prejudices
which judges share with their fellow-men, have
had a good deal more to do than the syllogism in
determining the rules by which men should be
governed."33 Then too, there was the warning of
Geny cited by Cardozo that undue stress or logic
may result in confining the entire system of
positive law, "within a limited number of logical
categories, predetermined in essence,
immovable in basis, governed by inflexible
dogmas," thus rendering it incapable of
responding to the ever varied and changing
exigencies of life.34,
It is cause enough for concern if the objection to
the Bacani decision were to be premised on the
score alone that perhaps there was fidelity to the
requirements of logic and jural symmetry carried
369 | PART 1 C O N S T I 1 FULLTEXT
to excess. What appears to me much more
deplorable is that it did fail to recognize that
there was a repudiation of the laissez-
faire concept in the Constitution. As was set
forth in the preceding pages, the Constitution is
distinguished precisely by a contrary philosophy.
The regime of liberty if provided for, with the
realization that under the then prevalent social
and economic conditions, it may be attained only
through a government with its sphere of activity
ranging far and wide, not excluding matters
hitherto left to the operation of free enterprise.
As rightfully stressed in our decision today in line
with what was earlier expressed by Justice
Laurel, the government that we have established
has as a fundamental principle the promotion of
social justice.35 The same jurist gave it a
comprehensive and enduring definition as the
"promotion of the welfare of all the people, the
adoption by the government of measures
calculated to insure economic stability of all the
component elements of society, through the
maintenance of a proper economic and social
equilibrium in the interrelations of the members
of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers
underlying the existence of all governments in
the time honored principle of salus populi
estsuprema lex."36
There is thus from the same distinguished pen,
this time writing for the Court, a reiteration of the
view of the laissez-faire doctrine being
repugnant to the fundamental law. It must be
added though that the reference to extra-
constitutional measures being allowable must be
understood in the sense that there is no
infringement of specific constitutional
guarantees. Otherwise, the judiciary will be hard
put to sustain their validity if challenged in an
appropriate legal proceeding.
The regime of liberty contemplated in the
Constitution with social justice as a fundamental
principle to reinforce the pledge in the preamble
of promoting the general welfare reflects
traditional concepts of a democratic policy
infused with an awareness of the vital and
pressing need for the government to assume a
much more active and vigorous role in the
conduct of public affairs. The framers of our
fundamental law were as one in their strongly-
held belief that thereby the grave and serious
infirmity then confronting our body-politic, on the
whole still with us now, of great inequality of
wealth and mass poverty, with the great bulk of
our people ill-clad, ill-housed, ill-fed, could be
remedied. Nothing else than communal effort,
massive in extent and earnestly engaged in,
would suffice.
To paraphrase Laski, with the necessary
modification in line with such worthy
constitutional ends, we look upon the state as an
organization to promote the happiness of
individuals, its authority as a power bound by
subordination to that purpose, liberty while to be
viewed negatively as absence of restraint
impressed with a positive aspect as well to
assure individual self-fulfillment in the attainment
of which greater responsibility is thrust on
government; and rights as boundary marks
defining areas outside its domain.37 From which
it would follow as Laski so aptly stated that it is
the individual's "happiness and not its well-being
[that is] the criterion by which its behavior [is] to
be judged. His interests, and not its power, set
the limits to the authority it [is] entitled to
exercise."38 We have under such a test enlarged
its field of competence. 4. With the decision
reached by us today, the government is freed
from the compulsion exerted by the Bacani
doctrine of the "constituent-ministrant" test as a
criterion for the type of activity in which it may
engage. Its constricting effect is consigned to
oblivion. No doubts or misgivings need assail us
that governmental efforts to promote the public
weal, whether through regulatory legislation of
vast scope and amplitude or through the
undertaking of business activities, would have to
face a searching and rigorous scrutiny. It is clear
that their legitimacy cannot be challenged on the
ground alone of their being offensive to the
implications of the laissez-faire concept. Unless
there be a repugnancy then to the limitations
expressly set forth in the Constitution to protect
individual rights, the government enjoys a much
wider latitude of action as to the means it
chooses to cope with grave social and economic
problems that urgently press for solution. For
me, at least, that is to manifest deference to the
philosophy of our fundamental law. Hence my
full concurrence, as announced at the outset.
5. The opinion of Justice Makalintal contains this
footnote: "It must be stated, however, that we do
not here decide the question — not at issue in
this case — of whether or not a labor
organization composed employees discharging
governmental functions, which is allowed under
the legal provision just quoted, provided such
organization does not impose the obligation to
strike or to join in strike, may petition for a
certification election and compel the employer to
bargain collectively with it for purposes other
than to secure changes or conditions in the
terms and conditions of employment."
With such an affirmation as to the scope of our
decision there being no holding on the vexing
question of the effects on the rights of labor in
view of the conclusion reached that the function
370 | PART 1 C O N S T I 1 FULLTEXT
engaged in is governmental in character, I am in
full agreement. The answer to such a vital query
must await another day.
Footnotes
1
Land Authority, Land Bank, Agricultural
Productivity Commission; Office of the
Agrarian Counsel.
2
The Land Reform Project
Administration is the organization
through which the field operations of
member agencies (of which the ACA is
one) shall be undertaken by their
respective personnel under a unified
administration. (Section 2 of Article 1,
Executive Order No. 75)
3
Section 79 (D) of the Revised
Administrative Code provides in part:
"The Department Head, upon the
recommendation of the Chief of bureaus
or office concerned, shall appoint all
subordinate officers and employees
whose appointment is not expressly
vested by law in the President of the
Philippines. . . . ."
4
Bacani vs. National Coconut
Corporation, G.R. No. L-9657, Nov. 29,
1956, 53 O.G. p. 2800.
5
Malcolm, The Government of the
Philippines, pp. 19-20; Bacani vs.
National Coconut Corporation, supra.
6
It must be stated, however, that we do
not here decide the question — not at
issue in this case — of whether or not a
labor organization composed of
employees discharging governmental
functions, which is allowed under the
legal provision just quoted provided
such organization does not impose the
obligation to strike or to join in strike,
may petition for a certification election
and compel the employer to bargain
collectively with it for purposes other
than to secure changes or modifications
in the terms and conditions of their
employment. Withal, it may not be amiss
to observe, albeit obiter, that the right to
organize thus allowed would be
meaningless unless there is a
correlative right on the part of the
organization to be recognized as the
proper representative of the employees
and to bargain in their behalf in relation
to matters outside the limitations
imposed by the statute, such as those
provided for in Section 28 (b) of
Republic Act No. 2260, concerning
complaints and grievances of the
employees.
7
Reenacted in Sec. 28 (c) of the Civil
Service Act of 1959, R.A. No. 2260.
FERNANDO, J., CONCURRING:
1
National Coal Co. v. Collector, 46 Phil.
583 (1924); Gov't. of P.I. v. Springer, 50
Phil. 259 (1927); Govt. of P.I. v. China
Banking Corp., 54 Phil. 845 (1930);
Association Cooperativa de Credito
Agricola de Miagao v. Monteclaro, 74
Phil. 281 (1943); Abad Santos v. Auditor
General, 79 Phil. 190 (1947); National
Airports Corp. v. Teodoro, 91 Phil. 203
(1952); GSIS v. Castillo, 98 Phil. 876
(1956); Price Stabilization Corp., 102
Phil. 515 (1957); Boy Scouts of Phil. v.
Araos, 102 Phil. 1080 (1958); Naric
Worker's Union v. Alvendia, 107 Phil.
404 (1960); GSIS Employees Asso. v.
Alvendia, L-15614, May 30, 1960;
National Dev. Co. v. Tobias, 7 SCRA
692 (1963); SSS Employees Asso. v.
Soriano, 7 SCRA 1016 (1963); PAL
Employees' Asso. v. Phil. Airlines, Inc.,
11 SCRA 387 (1964); Nawasa v. NWSA
Consolidated Unions, 11 SCRA 766
(1964); Phil. Mfg. Co. v. Manila Port
Service, 16 SCRA 95 (1966) and Phil.
Postal Savings Bank v. Court, 21 SCRA
1330 (1967).
2
100 Phil. 468 (1956).
3
Ibid., p. 472.
4
Ibid.
5
Malcolm, The Government of
Philippine Islands.
6
The Constitutional Position of the
Property Owner in 2 Selected Essays on
Constitutional Law, p. 2 (1938).
7
Cardozo, The Nature of Judicial
Process, p. 77 (1921).
371 | PART 1 C O N S T I 1 FULLTEXT
8
198 US 45 (1905). y preocupaciones que tenemos
nosotros, cuando en realidad el mundo
9
208 US 412. esta sufiendo actualmente por causa de
las teorias antiguas sobre la propiedad.
Ya he dicho aqui, o no se si en otra
10
243 US 426.
parte, que la nocion actual sobre
propiedad es la vinculacion perpetua de
11
261 Us 525. Again there was a todos los bienes que se pueden
vigorous dissent from Holmes. acumular por una familia, hasta el ultimo
de sus mas remotos descendientes, ha
12
300 US 379. producido ese enorme desnivel de
riqueza que se nota en todas partes del
13
262 US 522. mundo, la extrema miseria al lado del
extremo lujo. Una docena de enormes
14
291 US 502. millonarios, al lado de millones y
millones de seres desprovistos de lo
mas elemental y rudimentario, para
Jackson, Struggle for Judicial
15
satisfacer las necesidades ordinarias. Y
Supremacy, p. 74, (1941).
que? Vamos a permanecer indiferentes
antes que ante nuestra propia
16
284 Fed. 613 (1922). situacion? Hablamos tanto de
democracia, de prosperidad para el gran
17
As was stated in the above work of numero hacemos algo a favor de ese
Jackson: "But in just three years, gran numero que constituye la fuerza de
beginning with the October 1933 term, la nacion? No vamos siquiera a dedicar
the Court refused to recognize the un momento de nuestra atencion a la
power of Congress in twelve cases. Five gran injusticia social que supone el
of these twelve decisions occurred resultado de una extrema miseria y de
during a single year: that is, the October un lujo extremo? Fue Henry George el
1935 term; four of the five, by a sharply primero que llamo la atencion del
divided court." Jackson, op. cit. p. 41.. mundo sobre este problema. Toda la
bendicion de nuestra civilizacion, las
2 Selected Essays on Constitutional
18 enormes conquistas que el mundo ha
Law, op, cit., p. 27. realizado en el orden cientifico, han
tendido solamente a producir la felicidad
19
319 US 624. de unos pocos y la miseria de las
grandes muchedumbres. Creo que este
problema es digno de atencion en todas
20
39 Phil. 660, 717-718. partes del mundo, y a menos que
nosotros pongamos las medidas que
21
50 Phil. 259. han de atajar los peligros de futuro,
nuestra sociedad estara siempre sujeta
22
46 Phil. 440. a las alarmas que puedan producir las
muchedumbres hambrientas y deseosas
23
261 US 525. de su propio bienestar."

III Proceedings of the Philippine

24
28
Ibid., pp. 293-294.
Constitutional Convention, Laurel ed.,
pp. 173-174 (1966). 29
Ibid., I, Laurel ed., pp. 471-472.

25
Ibid., pp. 177-178. 30
70 Phil. 340.

26
Ibid., p. 178. 31
Ibid., pp. 356-357.

27
Cf. Ibid., pp. 227-228. To quote from 32
Ibid., p. 360.
Delegate Palma: "Uno de los principios
constitucionales es el referente a la 33
Holmes, The Common Law, p. 1
limitacion de la propiedad individual. Por (1881).
que se va a limitar la adquisicion de la
propiedad. Ese es otro de los prejuicios 34
Cardozo, op. cit., p. 47.
372 | PART 1 C O N S T I 1 FULLTEXT
35
Art. II, Sec. 5, Constitution.

36
Calalang v. Williams, 70 Phil. 726,
734-735 (1940).

37
Laski, The State in Theory and
Practice, p. 35 (1935).

38
Ibid., at p. 36.

373 | PART 1 C O N S T I 1 FULLTEXT

 EN BANC
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM
CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P.
DIZON, Judge of First Instance of
Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner
prays that the respondent judge of the lower
court be ordered to continue the proceedings in
civil case No. 3012 of said court, which were
initiated under the regime of the so-called
Republic of the Philippines established during
the Japanese military occupation of these
Islands.
The respondent judge refused to take
cognizance of and continue the proceedings in
said case on the ground that the proclamation
issued on October 23, 1944, by General
Douglas MacArthur had the effect of invalidating
and nullifying all judicial proceedings and
judgements of the court of the Philippines under
the Philippine Executive Commission and the
Republic of the Philippines established during
the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction
to take cognizance of and continue judicial
proceedings pending in the courts of the defunct
Republic of the Philippines in the absence of an
enabling law granting such authority. And the
same respondent, in his answer and
memorandum filed in this Court, contends that
the government established in the Philippines
during the Japanese occupation were no de
facto governments.
On January 2, 1942, the Imperial Japanese
Forces occupied the City of Manila, and on the
next day their Commander in Chief proclaimed
"the Military Administration under law over the
districts occupied by the Army." In said
proclamation, it was also provided that "so far as
the Military Administration permits, all the laws
now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue
to be effective for the time being as in the past,"
and "all public officials shall remain in their
present posts and carry on faithfully their duties
as before."
A civil government or central administration
organization under the name of "Philippine
Executive Commission was organized by Order
No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in
the Philippines, and Jorge B. Vargas, who was
appointed Chairman thereof, was instructed to
proceed to the immediate coordination of the
existing central administrative organs and
judicial courts, based upon what had existed
therefore, with approval of the said Commander
in Chief, who was to exercise jurisdiction over
judicial courts.
The Chairman of the Executive Commission, as
head of the central administrative organization,
issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively,
in which the Supreme Court, Court of Appeals,
Courts of First Instance, and the justices of the
peace and municipal courts under the
Commonwealth were continued with the same
jurisdiction, in conformity with the instructions
given to the said Chairman of the Executive
Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's
Order No. 3 of February 20, 1942, concerning
basic principles to be observed by the Philippine
Executive Commission in exercising legislative,
executive and judicial powers. Section 1 of said
Order provided that "activities of the
administration organs and judicial courts in the
Philippines shall be based upon the existing
statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of
the Philippines was inaugurated, but no
substantial change was effected thereby in the
organization and jurisdiction of the different
courts that functioned during the Philippine
Executive Commission, and in the laws they
administered and enforced.
On October 23, 1944, a few days after the
historic landing in Leyte, General Douglas
MacArthur issued a proclamation to the People
of the Philippines which declared:
1. That the Government of the
Commonwealth of the Philippines is,
subject to the supreme authority of the
Government of the United States, the
sole and only government having legal
and valid jurisdiction over the people in
areas of the Philippines free of enemy
occupation and control;
2. That the laws now existing on the
statute books of the Commonwealth of
the Philippines and the regulations
374 | PART 1 C O N S T I 1 FULLTEXT
 promulgated pursuant thereto are in full
force and effect and legally binding upon
the people in areas of the Philippines
free of enemy occupation and control;
and
3. That all laws, regulations and
processes of any other government in
the Philippines than that of the said
Commonwealth are null and void and
without legal effect in areas of the
Philippines free of enemy occupation
and control.
On February 3, 1945, the City of Manila was
partially liberated and on February 27, 1945,
General MacArthur, on behalf of the
Government of the United States, solemnly
declared "the full powers and responsibilities
under the Constitution restored to the
Commonwealth whose seat is here established
as provided by law."
In the light of these facts and events of
contemporary history, the principal questions to
be resolved in the present case may be reduced
to the following:(1) Whether the judicial acts and
proceedings of the court existing in the
Philippines under the Philippine Executive
Commission and the Republic of the Philippines
were good and valid and remained so even after
the liberation or reoccupation of the Philippines
by the United States and Filipino forces;
(2)Whether the proclamation issued on October
23, 1944, by General Douglas MacArthur,
Commander in Chief of the United States Army,
in which he declared "that all laws, regulations
and processes of any of the government in the
Philippines than that of the said Commonwealth
are null and void and without legal effect in
areas of the Philippines free of enemy
occupation and control," has invalidated all
judgements and judicial acts and proceedings of
the said courts; and (3) If the said judicial acts
and proceedings have not been invalidated by
said proclamation, whether the present courts of
the Commonwealth, which were the same court
existing prior to, and continued during, the
Japanese military occupation of the Philippines,
may continue those proceedings pending in said
courts at the time the Philippines were
reoccupied and liberated by the United States
and Filipino forces, and the Commonwealth of
the Philippines were reestablished in the Islands.
We shall now proceed to consider the first
question, that is, whether or not under the rules
of international law the judicial acts and
proceedings of the courts established in the
Philippines under the Philippine Executive
Commission and the Republic of the Philippines
were good and valid and remained good and
valid even after the liberation or reoccupation of
the Philippines by the United States and Filipino
forces.
1. It is a legal truism in political and international
law that all acts and proceedings of the
legislative, executive, and judicial departments
of a de facto government are good and valid.
The question to be determined is whether or not
the governments established in these Islands
under the names of the Philippine Executive
Commission and Republic of the Philippines
during the Japanese military occupation or
regime were de facto governments. If they were,
the judicial acts and proceedings of those
governments remain good and valid even after
the liberation or reoccupation of the Philippines
by the American and Filipino forces.
There are several kinds of de
facto governments. The first, or government de
facto in a proper legal sense, is that government
that gets possession and control of, or usurps,
by force or by the voice of the majority, the
rightful legal governments and maintains itself
against the will of the latter, such as the
government of England under the
Commonwealth, first by Parliament and later by
Cromwell as Protector. The second is that which
is established and maintained by military forces
who invade and occupy a territory of the enemy
in the course of war, and which is denominated
a government of paramount force, as the cases
of Castine, in Maine, which was reduced to
British possession in the war of 1812, and
Tampico, Mexico, occupied during the war with
Mexico, by the troops of the United States. And
the third is that established as an independent
government by the inhabitants of a country who
rise in insurrection against the parent state of
such as the government of the Southern
Confederacy in revolt not concerned in the
present case with the first kind, but only with the
second and third kinds of de facto governments.
Speaking of government "de facto" of the
second kind, the Supreme Court of the United
States, in the case of Thorington vs. Smith (8
Wall., 1), said: "But there is another description
of government, called also by publicists a
government de facto, but which might, perhaps,
be more aptly denominated a government of
paramount force. Its distinguishing
characteristics are (1), that its existence is
maintained by active military power with the
territories, and against the rightful authority of an
established and lawful government; and (2), that
while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of
obedience rendered in submission to such force,
375 | PART 1 C O N S T I 1 FULLTEXT
do not become responsible, or wrongdoers, for
those acts, though not warranted by the laws of
the rightful government. Actual governments of
this sort are established over districts differing
greatly in extent and conditions. They are
usually administered directly by military
authority, but they may be administered, also,
civil authority, supported more or less directly by
military force. . . . One example of this sort of
government is found in the case of Castine, in
Mine, reduced to British possession in the war of
1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like
example is found in the case of Tampico,
occupied during the war with Mexico, by the
troops of the United States . . . Fleming vs. Page
(9 Howard, 614). These were cases of
temporary possessions of territory by lawfull and
regular governments at war with the country of
which the territory so possessed was part."
The powers and duties of de facto governments
of this description are regulated in Section III of
the Hague Conventions of 1907, which is a
revision of the provisions of the Hague
Conventions of 1899 on the same subject of said
Section III provides "the authority of the
legislative power having actually passed into the
hands of the occupant, the latter shall take steps
in his power to reestablish and insure, as far as
possible, public order and safety, while
respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague
Conventions, as the belligerent occupant has the
right and is burdened with the duty to insure
public order and safety during his military
occupation, he possesses all the powers of a de
factogovernment, and he can suspended the old
laws and promulgate new ones and make such
changes in the old as he may see fit, but he is
enjoined to respect, unless absolutely prevented
by the circumstances prevailing in the occupied
territory, the municipal laws in force in the
country, that is, those laws which enforce public
order and regulate social and commercial life of
the country. On the other hand, laws of a
political nature or affecting political relations,
such as, among others, the right of assembly,
the right to bear arms, the freedom of the press,
and the right to travel freely in the territory
occupied, are considered as suspended or in
abeyance during the military occupation.
Although the local and civil administration of
justice is suspended as a matter of course as
soon as a country is militarily occupied, it is not
usual for the invader to take the whole
administration into his own hands. In practice,
the local ordinary tribunals are authorized to
continue administering justice; and judges and
other judicial officers are kept in their posts if
they accept the authority of the belligerent
occupant or are required to continue in their
positions under the supervision of the military or
civil authorities appointed, by the Commander in
Chief of the occupant. These principles and
practice have the sanction of all publicists who
have considered the subject, and have been
asserted by the Supreme Court and applied by
the President of the United States.
The doctrine upon this subject is thus summed
up by Halleck, in his work on International Law
(Vol. 2, p. 444): "The right of one belligerent to
occupy and govern the territory of the enemy
while in its military possession, is one of the
incidents of war, and flows directly from the right
to conquer. We, therefore, do not look to the
Constitution or political institutions of the
conqueror, for authority to establish a
government for the territory of the enemy in his
possession, during its military occupation, nor for
the rules by which the powers of such
government are regulated and limited. Such
authority and such rules are derived directly from
the laws war, as established by the usage of the
of the world, and confirmed by the writings of
publicists and decisions of courts — in fine, from
the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate
private rights, continue in force during military
occupation, excepts so far as they are
suspended or changed by the acts of conqueror.
. . . He, nevertheless, has all the powers of a de
facto government, and can at his pleasure either
change the existing laws or make new ones."
And applying the principles for the exercise of
military authority in an occupied territory, which
were later embodied in the said Hague
Conventions, President McKinley, in his
executive order to the Secretary of War of May
19,1898, relating to the occupation of the
Philippines by United States forces, said in part:
"Though the powers of the military occupant are
absolute and supreme, and immediately operate
upon the political condition of the inhabitants, the
municipal laws of the conquered territory, such
as affect private rights of person and property
and provide for the punishment of crime, are
considered as continuing in force, so far as they
are compatible with the new order of things, until
they are suspended or superseded by the
occupying belligerent; and in practice they are
not usually abrogated, but are allowed to remain
in force and to be administered by the ordinary
tribunals, substantially as they were before the
occupation. This enlightened practice is, so far
as possible, to be adhered to on the present
occasion. The judges and the other officials
connected with the administration of justice may,
if they accept the authority of the United States,
376 | PART 1 C O N S T I 1 FULLTEXT
continue to administer the ordinary law of the
land as between man and man under the
supervision of the American Commander in
Chief." (Richardson's Messages and Papers of
President, X, p. 209.)
As to "de facto" government of the third kind, the
Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized
the government set up by the Confederate
States as a de factogovernment. In that case, it
was held that "the central government
established for the insurgent States differed from
the temporary governments at Castine and
Tampico in the circumstance that its authority
did no originate in lawful acts of regular war; but
it was not, on the account, less actual or less
supreme. And we think that it must be classed
among the governments of which these are
examples. . . .
In the case of William vs. Bruffy (96 U. S. 176,
192), the Supreme Court of the United States,
discussing the validity of the acts of the
Confederate States, said: "The same general
form of government, the same general laws for
the administration of justice and protection of
private rights, which had existed in the States
prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts
of the States do not impair or tend to impair the
supremacy of the national authority, or the just
rights of citizens under the Constitution, they
are, in general, to be treated as valid and
binding. As we said in Horn vs. Lockhart (17
Wall., 570; 21 Law. ed., 657): "The existence of
a state of insurrection and war did not loosen the
bonds of society, or do away with civil
government or the regular administration of the
laws. Order was to be preserved, police
regulations maintained, crime prosecuted,
property protected, contracts enforced,
marriages celebrated, estates settled, and the
transfer and descent of property regulated,
precisely as in the time of peace. No one, that
we are aware of, seriously questions the validity
of judicial or legislative Acts in the
insurrectionary States touching these and
kindered subjects, where they were not hostile in
their purpose or mode of enforcement to the
authority of the National Government, and did
not impair the rights of citizens under the
Constitution'. The same doctrine has been
asserted in numerous other cases."
And the same court, in the case of
Baldy vs. Hunter (171 U. S., 388, 400), held:
"That what occured or was done in respect of
such matters under the authority of the laws of
these local de facto governments should not be
disregarded or held to be invalid merely because
those governments were organized in hostility to
the Union established by the national
Constitution; this, because the existence of war
between the United States and the Confederate
States did not relieve those who are within the
insurrectionary lines from the necessity of civil
obedience, nor destroy the bonds of society nor
do away with civil government or the regular
administration of the laws, and because
transactions in the ordinary course of civil
society as organized within the enemy's territory
although they may have indirectly or remotely
promoted the ends of the de facto or unlawful
government organized to effect a dissolution of
the Union, were without blame 'except when
proved to have been entered into with
actual intent to further invasion or insurrection:'"
and "That judicial and legislative acts in the
respective states composing the so-called
Confederate States should be respected by the
courts if they were not hostile in their purpose or
mode of enforcement to the authority of the
National Government, and did not impair the
rights of citizens under the Constitution."
In view of the foregoing, it is evident that the
Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23,
1942, by the Commander of the Japanese
forces, was a civil government established by
the military forces of occupation and therefore
a de facto government of the second kind. It was
not different from the government established by
the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says,
"The government established over an enemy's
territory during the military occupation may
exercise all the powers given by the laws of war
to the conqueror over the conquered, and is
subject to all restrictions which that code
imposes. It is of little consequence whether such
government be called a military or civil
government. Its character is the same and the
source of its authority the same. In either case it
is a government imposed by the laws of war,
and so far it concerns the inhabitants of such
territory or the rest of the world, those laws alone
determine the legality or illegality of its acts."
(Vol. 2, p. 466.) The fact that the Philippine
Executive Commission was a civil and not a
military government and was run by Filipinos
and not by Japanese nationals, is of no
consequence. In 1806, when Napoleon occupied
the greater part of Prussia, he retained the
existing administration under the general
direction of a french official (Langfrey History of
Napoleon, 1, IV, 25); and, in the same way, the
Duke of Willington, on invading France,
authorized the local authorities to continue the
exercise of their functions, apparently without
appointing an English superior. (Wellington
377 | PART 1 C O N S T I 1 FULLTEXT
Despatches, XI, 307.). The Germans, on the
other hand, when they invaded France in 1870,
appointed their own officials, at least in Alsace
and Lorraine, in every department of
administration and of every rank. (Calvo, pars.
2186-93; Hall, International Law, 7th ed., p. 505,
note 2.)
The so-called Republic of the Philippines,
apparently established and organized as a
sovereign state independent from any other
government by the Filipino people, was, in truth
and reality, a government established by the
belligerent occupant or the Japanese forces of
occupation. It was of the same character as the
Philippine Executive Commission, and the
ultimate source of its authority was the same —
the Japanese military authority and government.
As General MacArthur stated in his proclamation
of October 23, 1944, a portion of which has been
already quoted, "under enemy duress, a so-
called government styled as the 'Republic of the
Philippines' was established on October 14,
1943, based upon neither the free expression of
the people's will nor the sanction of the
Government of the United States." Japan had no
legal power to grant independence to the
Philippines or transfer the sovereignty of the
United States to, or recognize the latent
sovereignty of, the Filipino people, before its
military occupation and possession of the
Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty
of peace or other means recognized in the law of
nations. For it is a well-established doctrine in
International Law, recognized in Article 45 of the
Hauge Conventions of 1907 (which prohibits
compulsion of the population of the occupied
territory to swear allegiance to the hostile
power), the belligerent occupation, being
essentially provisional, does not serve to transfer
sovereignty over the territory controlled although
the de jure government is during the period of
occupancy deprived of the power to exercise its
rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United
States vs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The
formation of the Republic of the Philippines was
a scheme contrived by Japan to delude the
Filipino people into believing in the apparent
magnanimity of the Japanese gesture of
transferring or turning over the rights of
government into the hands of Filipinos. It was
established under the mistaken belief that by
doing so, Japan would secure the cooperation or
at least the neutrality of the Filipino people in her
war against the United States and other allied
nations.
Indeed, even if the Republic of the Philippines
had been established by the free will of the
Filipino who, taking advantage of the withdrawal
of the American forces from the Islands, and the
occupation thereof by the Japanese forces of
invasion, had organized an independent
government under the name with the support
and backing of Japan, such government would
have been considered as one established by the
Filipinos in insurrection or rebellion against the
parent state or the Unite States. And as such, it
would have been a de facto government similar
to that organized by the confederate states
during the war of secession and recognized as
such by the by the Supreme Court of the United
States in numerous cases, notably those of
Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to
the short-lived government established by the
Filipino insurgents in the Island of Cebu during
the Spanish-American war, recognized as a de
facto government by the Supreme Court of the
United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in
the last-named case, the Spanish forces
evacuated the Island of Cebu on December 25,
1898, having first appointed a provisional
government, and shortly afterwards, the
Filipinos, formerly in insurrection against Spain,
took possession of the Islands and established a
republic, governing the Islands until possession
thereof was surrendered to the United States on
February 22, 1898. And the said Supreme Court
held in that case that "such government was of
the class of de facto governments described in I
Moore's International Law Digest, S 20, . . .
'called also by publicists a government de facto,
but which might, perhaps, be more aptly
denominated a government of paramount force .
. '." That is to say, that the government of a
country in possession of belligerent forces in
insurrection or rebellion against the parent state,
rests upon the same principles as that of a
territory occupied by the hostile army of an
enemy at regular war with the legitimate power.
The governments by the Philippine Executive
Commission and the Republic of the Philippines
during the Japanese military occupation
being de facto governments, it necessarily
follows that the judicial acts and proceedings of
the courts of justice of those governments, which
are not of a political complexion, were good and
valid, and, by virtue of the well-known principle
of postliminy (postliminium) in international law,
remained good and valid after the liberation or
reoccupation of the Philippines by the American
and Filipino forces under the leadership of
General Douglas MacArthur. According to that
well-known principle in international law, the fact
that a territory which has been occupied by an
378 | PART 1 C O N S T I 1 FULLTEXT
enemy comes again into the power of its
legitimate government of sovereignty, "does not,
except in a very few cases, wipe out the effects
of acts done by an invader, which for one reason
or another it is within his competence to do.
Thus judicial acts done under his control, when
they are not of a political complexion,
administrative acts so done, to the extent that
they take effect during the continuance of his
control, and the various acts done during the
same time by private persons under the sanction
of municipal law, remain good. Were it
otherwise, the whole social life of a community
would be paralyzed by an invasion; and as
between the state and the individuals the evil
would be scarcely less, — it would be hard for
example that payment of taxes made under
duress should be ignored, and it would be
contrary to the general interest that the
sentences passed upon criminals should be
annulled by the disappearance of the intrusive
government ." (Hall, International Law, 7th ed.,
p. 518.) And when the occupation and the
abandonment have been each an incident of the
same war as in the present case, postliminy
applies, even though the occupant has acted as
conqueror and for the time substituted his own
sovereignty as the Japanese intended to do
apparently in granting independence to the
Philippines and establishing the so-called
Republic of the Philippines. (Taylor, International
Law, p. 615.)
That not only judicial but also legislative acts
of de facto governments, which are not of a
political complexion, are and remain valid after
reoccupation of a territory occupied by a
belligerent occupant, is confirmed by the
Proclamation issued by General Douglas
MacArthur on October 23, 1944, which declares
null and void all laws, regulations and processes
of the governments established in the
Philippines during the Japanese occupation, for
it would not have been necessary for said
proclamation to abrogate them if they were
invalid ab initio.
2. The second question hinges upon the
interpretation of the phrase "processes of any
other government" as used in the above-quoted
proclamation of General Douglas MacArthur of
October 23, 1944 — that is, whether it was the
intention of the Commander in Chief of the
American Forces to annul and void thereby all
judgments and judicial proceedings of the courts
established in the Philippines during the
Japanese military occupation.
The phrase "processes of any other
government" is broad and may refer not only to
the judicial processes, but also to administrative
or legislative, as well as constitutional,
processes of the Republic of the Philippines or
other governmental agencies established in the
Islands during the Japanese occupation. Taking
into consideration the fact that, as above
indicated, according to the well-known principles
of international law all judgements and judicial
proceedings, which are not of a political
complexion, of the de facto governments during
the Japanese military occupation were good and
valid before and remained so after the occupied
territory had come again into the power of the
titular sovereign, it should be presumed that it
was not, and could not have been, the intention
of General Douglas MacArthur, in using the
phrase "processes of any other government" in
said proclamation, to refer to judicial processes,
in violation of said principles of international law.
The only reasonable construction of the said
phrase is that it refers to governmental
processes other than judicial processes of court
proceedings, for according to a well-known rule
of statutory construction, set forth in 25 R. C. L.,
p. 1028, "a statute ought never to be construed
to violate the law of nations if any other possible
construction remains."
It is true that the commanding general of a
belligerent army of occupation, as an agent of
his government, may not unlawfully suspend
existing laws and promulgate new ones in the
occupied territory, if and when the exigencies of
the military occupation demand such action. But
even assuming that, under the law of nations,
the legislative power of a commander in chief of
military forces who liberates or reoccupies his
own territory which has been occupied by an
enemy, during the military and before the
restoration of the civil regime, is as broad as that
of the commander in chief of the military forces
of invasion and occupation (although the
exigencies of military reoccupation are evidently
less than those of occupation), it is to be
presumed that General Douglas MacArthur, who
was acting as an agent or a representative of the
Government and the President of the United
States, constitutional commander in chief of the
United States Army, did not intend to act against
the principles of the law of nations asserted by
the Supreme Court of the United States from the
early period of its existence, applied by the
Presidents of the United States, and later
embodied in the Hague Conventions of 1907, as
above indicated. It is not to be presumed that
General Douglas MacArthur, who enjoined in the
same proclamation of October 23, 1944, "upon
the loyal citizens of the Philippines full respect
and obedience to the Constitution of the
Commonwealth of the Philippines," should not
only reverse the international policy and practice
of his own government, but also disregard in the
379 | PART 1 C O N S T I 1 FULLTEXT
same breath the provisions of section 3, Article
II, of our Constitution, which provides that "The
Philippines renounces war as an instrument of
national policy, and adopts the generally
accepted principles of international law as part of
the law of the Nation."
Moreover, from a contrary construction great
inconvenience and public hardship would result,
and great public interests would be endangered
and sacrificed, for disputes or suits already
adjudged would have to be again settled
accrued or vested rights nullified, sentences
passed on criminals set aside, and criminals
might easily become immune for evidence
against them may have already disappeared or
be no longer available, especially now that
almost all court records in the Philippines have
been destroyed by fire as a consequence of the
war. And it is another well-established rule of
statutory construction that where great
inconvenience will result from a particular
construction, or great public interests would be
endangered or sacrificed, or great mischief
done, such construction is to be avoided, or the
court ought to presume that such construction
was not intended by the makers of the law,
unless required by clear and unequivocal words.
(25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility
that the titular sovereign or his representatives
who reoccupies a territory occupied by an
enemy, may set aside or annul all the judicial
acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to
establish in order to insure public order and
safety during military occupation, would be
sufficient to paralyze the social life of the country
or occupied territory, for it would have to be
expected that litigants would not willingly submit
their litigation to courts whose judgements or
decisions may afterwards be annulled, and
criminals would not be deterred from committing
crimes or offenses in the expectancy that they
may escaped the penalty if judgments rendered
against them may be afterwards set aside.
That the proclamation has not invalidated all the
judgements and proceedings of the courts of
justice during the Japanese regime, is impliedly
confirmed by Executive Order No. 37, which has
the force of law, issued by the President of the
Philippines on March 10, 1945, by virtue of the
emergency legislative power vested in him by
the Constitution and the laws of the
Commonwealth of the Philippines. Said
Executive order abolished the Court of Appeals,
and provided "that all case which have
heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly
recognizes that the judgments and proceedings
of the courts during the Japanese military
occupation have not been invalidated by the
proclamation of General MacArthur of October
23, because the said Order does not say or refer
to cases which have been duly appealed to said
court prior to the Japanese occupation, but to
cases which had therefore, that is, up to March
10, 1945, been duly appealed to the Court of
Appeals; and it is to be presumed that almost all,
if not all, appealed cases pending in the Court of
Appeals prior to the Japanese military
occupation of Manila on January 2, 1942, had
been disposed of by the latter before the
restoration of the Commonwealth Government in
1945; while almost all, if not all, appealed cases
pending on March 10, 1945, in the Court of
Appeals were from judgments rendered by the
Court of First Instance during the Japanese
regime.
The respondent judge quotes a portion of
Wheaton's International Law which say:
"Moreover when it is said that an occupier's acts
are valid and under international law should not
be abrogated by the subsequent conqueror, it
must be remembered that no crucial instances
exist to show that if his acts should be reversed,
any international wrong would be committed.
What does happen is that most matters are
allowed to stand by the restored government,
but the matter can hardly be put further than
this." (Wheaton, International Law, War, 7th
English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the
conclusion that whether the acts of the occupant
should be considered valid or not, is a question
that is up to the restored government to decide;
that there is no rule of international law that
denies to the restored government to decide;
that there is no rule of international law that
denies to the restored government the right of
exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing
and enforcing the acts of the overthrown
government."
There is doubt that the subsequent conqueror
has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and
processes other than judicial of the government
established by the belligerent occupant. But in
view of the fact that the proclamation uses the
words "processes of any other government" and
not "judicial processes" prisely, it is not
necessary to determine whether or not General
Douglas MacArthur had power to annul and set
aside all judgments and proceedings of the
courts during the Japanese occupation. The
question to be determined is whether or not it
380 | PART 1 C O N S T I 1 FULLTEXT
was his intention, as representative of the
President of the United States, to avoid or nullify
them. If the proclamation had, expressly or by
necessary implication, declared null and void the
judicial processes of any other government, it
would be necessary for this court to decide in
the present case whether or not General
Douglas MacArthur had authority to declare
them null and void. But the proclamation did not
so provide, undoubtedly because the author
thereof was fully aware of the limitations of his
powers as Commander in Chief of Military
Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the
principles of international law, as they result from
the usages established between civilized
nations, the laws of humanity and the
requirements of the public of conscience,
constitute or from the law of nations. (Preamble
of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article
43, section III, of the Hague Regulations or
Conventions which we have already quoted in
discussing the first question, imposes upon the
occupant the obligation to establish courts; and
Article 23 (h), section II, of the same
Conventions, which prohibits the belligerent
occupant "to declare . . . suspended . . . in a
Court of Law the rights and action of the
nationals of the hostile party," forbids him to
make any declaration preventing the inhabitants
from using their courts to assert or enforce their
civil rights. (Decision of the Court of Appeals of
England in the case of Porter vs. Fruedenburg,
L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice
in the territory occupied, and forbidden to
prevent the nationals thereof from asserting or
enforcing therein their civil rights, by necessary
implication, the military commander of the forces
of liberation or the restored government is
restrained from nullifying or setting aside the
judgments rendered by said courts in their
litigation during the period of occupation.
Otherwise, the purpose of these precepts of the
Hague Conventions would be thwarted, for to
declare them null and void would be tantamount
to suspending in said courts the right and action
of the nationals of the territory during the military
occupation thereof by the enemy. It goes without
saying that a law that enjoins a person to do
something will not at the same time empower
another to undo the same. Although the question
whether the President or commanding officer of
the United States Army has violated restraints
imposed by the constitution and laws of his
country is obviously of a domestic nature, yet, in
construing and applying limitations imposed on
the executive authority, the Supreme Court of
the United States, in the case of
Ochoa, vs. Hernandez (230 U.S., 139), has
declared that they "arise from general rules of
international law and from fundamental
principles known wherever the American flag
flies."
In the case of Raymond vs. Thomas (91 U.S.,
712), a special order issued by the officer in
command of the forces of the United States in
South Carolina after the end of the Civil War,
wholly annulling a decree rendered by a court of
chancery in that state in a case within its
jurisdiction, was declared void, and not
warranted by the acts approved respectively
March 2, 1867 (14 Stat., 428), and July 19 of the
same year (15 id., 14), which defined the powers
and duties of military officers in command of the
several states then lately in rebellion. In the
course of its decision the court said; "We have
looked carefully through the acts of March 2,
1867 and July 19, 1867. They give very large
governmental powers to the military
commanders designated, within the States
committed respectively to their jurisdiction; but
we have found nothing to warrant the order here
in question. . . . The clearest language would be
necessary to satisfy us that Congress intended
that the power given by these acts should be so
exercised. . . . It was an arbitrary stretch of
authority, needful to no good end that can be
imagined. Whether Congress could have
conferred the power to do such an act is a
question we are not called upon to consider. It is
an unbending rule of law that the exercise of
military power, where the rights of the citizen are
concerned, shall never be pushed beyond what
the exigency requires. (Mithell vs. Harmony, 13
How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1
Smith's L.C., pt. 2, p. 934.) Viewing the subject
before us from the standpoint indicated, we hold
that the order was void."
It is, therefore, evident that the proclamation of
General MacArthur of October 23, 1944, which
declared that "all laws, regulations and
processes of any other government in the
Philippines than that of the said Commonwealth
are null and void without legal effect in areas of
the Philippines free of enemy occupation and
control," has not invalidated the judicial acts and
proceedings, which are not a political
complexion, of the courts of justice in the
Philippines that were continued by the Philippine
Executive Commission and the Republic of the
Philippines during the Japanese military
occupation, and that said judicial acts and
proceedings were good and valid before and
now good and valid after the reoccupation of
liberation of the Philippines by the American and
Filipino forces.
381 | PART 1 C O N S T I 1 FULLTEXT
3. The third and last question is whether or not
the courts of the Commonwealth, which are the
same as those existing prior to, and continued
during, the Japanese military occupation by the
Philippine Executive Commission and by the so-
called Republic of the Philippines, have
jurisdiction to continue now the proceedings in
actions pending in said courts at the time the
Philippine Islands were reoccupied or liberated
by the American and Filipino forces, and the
Commonwealth Government was restored.
Although in theory the authority the authority of
the local civil and judicial administration is
suspended as a matter of course as soon as
military occupation takes place, in practice the
invader does not usually take the administration
of justice into his own hands, but continues the
ordinary courts or tribunals to administer the
laws of the country which he is enjoined, unless
absolutely prevented, to respect. As stated in the
above-quoted Executive Order of President
McKinley to the Secretary of War on May 19,
1898, "in practice, they (the municipal laws) are
not usually abrogated but are allowed to remain
in force and to be administered by the ordinary
tribunals substantially as they were before the
occupation. This enlightened practice is, so far
as possible, to be adhered to on the present
occasion." And Taylor in this connection says:
"From a theoretical point of view it may be said
that the conqueror is armed with the right to
substitute his arbitrary will for all preexisting
forms of government, legislative, executive and
judicial. From the stand-point of actual practice
such arbitrary will is restrained by the provision
of the law of nations which compels the
conqueror to continue local laws and institution
so far as military necessity will permit." (Taylor,
International Public Law, p.596.) Undoubtedly,
this practice has been adopted in order that the
ordinary pursuits and business of society may
not be unnecessarily deranged, inasmuch as
belligerent occupation is essentially provisional,
and the government established by the occupant
of transient character.
Following these practice and precepts of the law
of nations, Commander in Chief of the Japanese
Forces proclaimed on January 3, 1942, when
Manila was occupied, the military administration
under martial law over the territory occupied by
the army, and ordered that "all the laws now in
force in the Commonwealth, as well as executive
and judicial institutions, shall continue to be
affective for the time being as in the past," and
"all public officials shall remain in their present
post and carry on faithfully their duties as
before." When the Philippine Executive
Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January
23, 1942, the Chairman of the Executive
Commission, by Executive Orders Nos. 1 and 4
of January 30 and February 5, respectively,
continued the Supreme Court, Court of Appeals,
Court of First Instance, and justices of the peace
of courts, with the same jurisdiction in conformity
with the instructions given by the Commander in
Chief of the Imperial Japanese Army in Order
No. 3 of February 20, 1942. And on October 14,
1943 when the so-called Republic of the
Philippines was inaugurated, the same courts
were continued with no substantial change in
organization and jurisdiction thereof.
If the proceedings pending in the different courts
of the Islands prior to the Japanese military
occupation had been continued during the
Japanese military administration, the Philippine
Executive Commission, and the so-called
Republic of the Philippines, it stands to reason
that the same courts, which had become
reestablished and conceived of as having in
continued existence upon the reoccupation and
liberation of the Philippines by virtue of the
principle of postliminy (Hall, International Law,
7th ed., p. 516), may continue the proceedings
in cases then pending in said courts, without
necessity of enacting a law conferring
jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in
speaking of said principles "a state or other
governmental entity, upon the removal of a
foreign military force, resumes its old place with
its right and duties substantially unimpaired. . . .
Such political resurrection is the result of a law
analogous to that which enables elastic bodies
to regain their original shape upon removal of
the external force, — and subject to the same
exception in case of absolute crushing of the
whole fibre and content." (Taylor, International
Public Law, p. 615.)
The argument advanced by the respondent
judge in his resolution in support in his
conclusion that the Court of First Instance of
Manila presided over by him "has no authority to
take cognizance of, and continue said
proceedings (of this case) to final judgment until
and unless the Government of the
Commonwealth of the Philippines . . . shall have
provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the
Philippines, and the cases commenced and the
left pending therein," is "that said courts were a
government alien to the Commonwealth
Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to
Japanese occupation, but they had become the
laws — and the courts had become the
institutions — of Japan by adoption
(U.S. vs.Reiter. 27 F. Cases, No. 16146), as
382 | PART 1 C O N S T I 1 FULLTEXT
they became later on the laws and institutions of
the Philippine Executive Commission and the
Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did
not and could not say that the laws and
institutions of the country occupied if continued
by the conqueror or occupant, become the laws
and the courts, by adoption, of the sovereign
nation that is militarily occupying the territory.
Because, as already shown, belligerent or
military occupation is essentially provisional and
does not serve to transfer the sovereignty over
the occupied territory to the occupant. What the
court said was that, if such laws and institutions
are continued in use by the occupant, they
become his and derive their force from him, in
the sense that he may continue or set them
aside. The laws and institution or courts so
continued remain the laws and institutions or
courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not
become, by being continued as required by the
law of nations, laws and courts of Japan. The
provision of Article 45, section III, of the Hague
Conventions of 1907 which prohibits any
compulsion of the population of occupied
territory to swear allegiance to the hostile power,
"extends to prohibit everything which would
assert or imply a change made by the invader in
the legitimate sovereignty. This duty is neither to
innovate in the political life of the occupied
districts, nor needlessly to break the continuity of
their legal life. Hence, so far as the courts of
justice are allowed to continue administering the
territorial laws, they must be allowed to give their
sentences in the name of the legitimate
sovereign " (Westlake, Int. Law, Part II, second
ed., p. 102). According to Wheaton, however,
the victor need not allow the use of that of the
legitimate government. When in 1870, the
Germans in France attempted to violate that rule
by ordering, after the fall of the Emperor
Napoleon, the courts of Nancy to administer
justice in the name of the "High German Powers
occupying Alsace and Lorraine," upon the
ground that the exercise of their powers in the
name of French people and government was at
least an implied recognition of the Republic, the
courts refused to obey and suspended their
sitting. Germany originally ordered the use of the
name of "High German Powers occupying
Alsace and Lorraine," but later offered to allow
use of the name of the Emperor or a
compromise. (Wheaton, International Law, War,
7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting
that of a political nature, "Law once established
continues until changed by the some competent
legislative power. It is not change merely by
change of sovereignty." (Joseph H. Beale,
Cases on Conflict of Laws, III, Summary Section
9, citing Commonwealth vs. Chapman, 13 Met.,
68.) As the same author says, in his Treatise on
the Conflict on Laws (Cambridge, 1916, Section
131): "There can no break or interregnum in law.
From the time the law comes into existence with
the first-felt corporateness of a primitive people it
must last until the final disappearance of human
society. Once created, it persists until a change
take place, and when changed it continues in
such changed condition until the next change,
and so forever. Conquest or colonization is
impotent to bring law to an end; in spite of
change of constitution, the law continues
unchanged until the new sovereign by legislative
acts creates a change."
As courts are creatures of statutes and their
existence defends upon that of the laws which
create and confer upon them their jurisdiction, it
is evident that such laws, not being a political
nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio
vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts
are expressly continued is not necessary in
order that they may continue in force. Such
proclamation, if made, is but a declaration of the
intention of respecting and not repealing those
laws. Therefore, even assuming that Japan had
legally acquired sovereignty over these Islands,
which she had afterwards transferred to the so-
called Republic of the Philippines, and that the
laws and the courts of these Islands had
become the courts of Japan, as the said courts
of the laws creating and conferring jurisdiction
upon them have continued in force until now, it
necessarily follows that the same courts may
continue exercising the same jurisdiction over
cases pending therein before the restoration of
the Commonwealth Government, unless and
until they are abolished or the laws creating and
conferring jurisdiction upon them are repealed
by the said government. As a consequence,
enabling laws or acts providing that proceedings
pending in one court be continued by or
transferred to another court, are not required by
the mere change of government or sovereignty.
They are necessary only in case the former
courts are abolished or their jurisdiction so
change that they can no longer continue taking
cognizance of the cases and proceedings
commenced therein, in order that the new courts
or the courts having jurisdiction over said cases
may continue the proceedings. When the
Spanish sovereignty in the Philippine Islands
ceased and the Islands came into the
possession of the United States, the "Audiencia"
or Supreme Court was continued and did not
cease to exist, and proceeded to take
383 | PART 1 C O N S T I 1 FULLTEXT
cognizance of the actions pending therein upon
the cessation of the Spanish sovereignty until
the said "Audiencia" or Supreme Court was
abolished, and the Supreme Court created in
Chapter II of Act No. 136 was substituted in lieu
thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued
taking cognizance of cases pending therein
upon the change of sovereignty, until section 65
of the same Act No. 136 abolished them and
created in its Chapter IV the present Courts of
First Instance in substitution of the former.
Similarly, no enabling acts were enacted during
the Japanese occupation, but a mere
proclamation or order that the courts in the
Island were continued.
On the other hand, during the American regime,
when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost
courts created by the military government of
occupation in the Philippines during the Spanish-
American War of 1898, the same section 78
provided for the transfer of all civil actions then
pending in the provost courts to the proper
tribunals, that is, to the justices of the peace
courts, Court of First Instance, or Supreme Court
having jurisdiction over them according to law.
And later on, when the criminal jurisdiction of
provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same
section provided that criminal cases pending
therein within the jurisdiction of the municipal
court created by Act No. 183 were transferred to
the latter.
That the present courts as the same courts
which had been functioning during the Japanese
regime and, therefore, can continue the
proceedings in cases pending therein prior to the
restoration of the Commonwealth of the
Philippines, is confirmed by Executive Order No.
37 which we have already quoted in support of
our conclusion in connection with the second
question. Said Executive Order provides"(1) that
the Court of Appeals created and established
under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2)
that all cases which have heretofore been duly
appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final
decision. . . ." In so providing, the said Order
considers that the Court of Appeals abolished
was the same that existed prior to, and
continued after, the restoration of the
Commonwealth Government; for, as we have
stated in discussing the previous question,
almost all, if not all, of the cases pending therein,
or which had theretofore (that is, up to March 10,
1945) been duly appealed to said court, must
have been cases coming from the Courts of First
Instance during the so-called Republic of the
Philippines. If the Court of Appeals abolished by
the said Executive Order was not the same one
which had been functioning during the Republic,
but that which had existed up to the time of the
Japanese occupation, it would have provided
that all the cases which had, prior to and up to
that occupation on January 2, 1942, been dully
appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final
decision.
It is, therefore, obvious that the present courts
have jurisdiction to continue, to final judgment,
the proceedings in cases, not of political
complexion, pending therein at the time of the
restoration of the Commonwealth Government.
Having arrived at the above conclusions, it
follows that the Court of First Instance of Manila
has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which
involves civil rights of the parties under the laws
of the Commonwealth Government, pending in
said court at the time of the restoration of the
said Government; and that the respondent judge
of the court, having refused to act and continue
him does a duty resulting from his office as
presiding judge of that court, mandamus is the
speedy and adequate remedy in the ordinary
course of law, especially taking into
consideration the fact that the question of
jurisdiction herein involved does affect not only
this particular case, but many other cases now
pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and
decreed that a writ of mandamus issue, directed
to the respondent judge of the Court of First
Instance of Manila, ordering him to take
cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court.
No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo,
JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is
the validity of the proceedings held in civil case
No. 3012, in the Court of First Instance of the
City of Manila, under the now defunct Philippine
Republic, during Japanese occupation; and the
effect on said proceedings of the proclamation of
384 | PART 1 C O N S T I 1 FULLTEXT
General Douglas MacArthur, dated October 23,
1944. The decision of this question requires the
application of principles of International Law, in
connection with the municipal law in force in this
country, before and during Japanese
occupation.
Questions of International Law must be decided
as matters of general law (Juntington vs. Attril,
146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed.,
1123); and International Law is no alien in this
Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of
the fundamental law of the land (Article II,
section 3).
As International Law is an integral part of our
laws, it must be ascertained and administered by
this Court, whenever questions of right
depending upon it are presented for our
determination, sitting as an international as well
as a domestic Tribunal (Kansas vs. Colorado,
185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed.,
838).
Since International Law is a body of rules
actually accepted by nations as regulating their
mutual relations, the proof of the existence of a
given rule is to be found in the consent of
nations to abide by that rule; and this consent is
evidenced chiefly by the usages and customs of
nations, and to ascertain what these usages and
customs are, the universal practice is to turn to
the writings of publicists and to the decisions of
the highest courts of the different countries of
the world (The Habana, 175 U.S., 677; 20 Sup.
Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source
of International Law, great international treaties
are a later source of increasing importance, such
as The Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting
laws and customs of war on land, expressly
declares that:
ARTICLE XLII. Territory is considered
occupied when it is actually placed
under the authority of the hostile army.
The occupation applies only to be
territory where such authority is
established, and in a position to assert
itself.
ARTICLE XLIII. The authority of the
legitimate power having actually passed
into the hands of the occupant, the later
shall take all steps in his power to
reestablish and insure, as far as
possible, public order and safety, while
respecting, unless absolutely prevented,
the laws in force in the country. (32 Stat.
II, 1821.)
The above provisions of the Hague Convention
have been adopted by the nations giving
adherence to them, among which is United
States of America (32 Stat. II, 1821).
The commander in chief of the invading forces
or military occupant may exercise governmental
authority, but only when in actual possession of
the enemy's territory, and this authority will be
exercised upon principles of international Law
(New Orleans vs. Steamship Co, [1874], 20
Wall., 387; Kelly vs. Sanders [1878], 99 U.S.,
441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup.
Ct., 955; 57 Law Ed., 1260; II Oppenheim of
International Law, section 167).
There can be no question that the Philippines
was under Japanese military occupation, from
January, 1942, up to the time of the reconquest
by the armed forces of the United States of the
Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of
the invaded State continue in force, in so far as
they do not affect the hostile occupant
unfavorably. The regular judicial Tribunals of the
occupied territory continue usual for the invader
to take the whole administration into his own
hands, partly because it is easier to preserve
order through the agency of the native officials,
and partly because it is easier to preserve order
through the agency of the native officials, and
partly because the latter are more competent to
administer the laws in force within the territory
and the military occupant generally keeps in
their posts such of the judicial and administrative
officers as are willing to serve under him,
subjecting them only to supervision by the
military authorities, or by superior civil authorities
appointed by him.(Young vs. U.S., 39; 24 Law,
ed., 992; Coleman vs. Tennessee, 97 U.S., 509;
24 Law ed., 1118; MacLeod vs. U.S., 229 U.S.,
416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor
on International Law, sections 576. 578; Wilson
on International Law; pp. 331-37; Hall on
International Law, 6th Edition [1909], pp. 464,
465, 475, 476; Lawrence on International Law,
7th ed., pp. 412, 413; Davis, Elements of
International Law, 3rd ed., pp. 330-332 335;
Holland on International Law pp. 356, 357, 359;
Westlake on International Law, 2d ed., pp. 121-
23.)
385 | PART 1 C O N S T I 1 FULLTEXT
It is, therefore, evident that the establishment of
the government under the so-called Philippine
Republic, during Japanese occupation,
respecting the laws in force in the country, and
permitting the local courts to function and
administer such laws, as proclaimed in the City
of Manila, by the Commander in Chief of the
Japanese Imperial Forces, on January 3, 1942,
was in accordance with the rules and principles
of International Law.
If the military occupant is thus in duly bound to
establish in the territory under military
occupation governmental agencies for the
preservation of peace and order and for the
proper administration of justice, in accordance
with the laws in force within territory it must
necessarily follow that the judicial proceedings
conducted before the courts established by the
military occupant must be considered legal and
valid, even after said government establish by
the military occupant has been displaced by the
legitimate government of the territory.
Thus the judgments rendered by the
Confederate Courts, during the American Civil
War, merely settling the rights of private parties
actually within their jurisdiction, not tending to
defeat the legal rights of citizens of the United
States, nor in furtherance of laws passed in aid
of the rebellion had been declared valid and
binding (Cock vs. Oliver, 1 Woods, 437; Fed.
Cas., No. 3, 164; Coleman vs. Tennessee, 97 U.
S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96
U. S., 176; Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459;
Texas vs. White, 7 id., 700; Ketchum vs. Buckley
[1878], 99 U.S., 188); and the judgment of a
court of Georgia rendered in November, 1861,
for the purchase money of slaves was held valid
judgment when entered, and enforceable in
1871(French vs. Tumlin, 10 Am. Law. Reg.
[N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the
states constituting the Confederate States of
America were considered legal and valid and
enforceable, even after the termination of the
American Civil War, because they had been
rendered by the courts of a de facto government.
The Confederate States were a de
facto government in the sense that its citizens
were bound to render the government obedience
in civil matters, and did not become responsible,
as wrong-doers, for such acts of obedience
(Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law.
ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99
U.S., 188), the Court held — "It is now settled
law in this court that during the late civil war the
same general form of government, the same
general law for the administration of justice and
the protection of private rights, which had
existed in the States prior to the rebellion,
remained during its continuance and afterwards.
As far as the acts of the States did not impair or
tend to impair the supremacy of the national
authority, or the just and legal rights of the
citizens, under the Constitution, they are in
general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176;
Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459;
Texas vs. White, 7 id., 700.)
The government established in the Philippines,
during Japanese occupation, would seem to fall
under the following definition of de
facto government given by the Supreme Court of
the United States:
But there is another description of
government, called also by publicists, a
government de facto, but which might,
perhaps, be more aptly denominateda
government of paramount force. Its
distinguishing characteristics are (1) that
its existence is maintained by active
military power within the territories, and
against the rightful authority of an
established and lawful government; and
(2) that while it exists it must necessarily
be obeyed in civil matters by private
citizens who, by acts of obedience
rendered in submission to such force, do
not become responsible, as wrong
doers, for those acts, though not
warranted by the laws of the rightful
government. Actual government of this
sort are established over districts
differing greatly in extent and conditions.
They are usually administered directly
by military authority, but they may be
administered, also, by civil authority,
supported more or less directly by
military force. (Macleod vs. United
States [1913] 229 U.S., 416.)
The government established in the Philippines,
under the so-called Philippine Republic, during
Japanese occupation, was and should be
considered as a de facto government; and that
the judicial proceedings conducted before the
courts which had been established in this
country, during said Japanese occupation, are to
be considered legal and valid and enforceable,
even after the liberation of this country by the
American forces, as long as the said judicial
proceedings had been conducted, under the
laws of the Commonwealth of the Philippines.
386 | PART 1 C O N S T I 1 FULLTEXT
The judicial proceedings involved in the case
under consideration merely refer to the
settlement of property rights, under the
provisions of the Civil Code, in force in this
country under the Commonwealth government,
before and during Japanese occupation.
Now, petitioner contends that the judicial
proceedings in question are null and void, under
the provisions of the proclamation issued by
General Douglas MacArthur, dated October 23,
1944; as said proclamation "nullifies all the laws,
regulations and processes of any other
government of the Philippines than that of the
Commonwealth of the Philippines."
In other words, petitioner demands a literal
interpretation of said proclamation issued by
General Douglas MacArthur, a contention which,
in our opinion, is untenable, as it would
inevitably produce judicial chaos and
uncertainties.
When an act is susceptible of two or more
constructions, one of which will maintain and the
others destroy it, the courts will always adopt the
former (U. S. vs. Coombs [1838], 12 Pet., 72; 9
Law. ed., 1004; Board of Supervisors of
Granada County vs. Brown [1884], 112 U.S.,
261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In
re Guarina [1913], 24 Phil., 37;
Fuentes vs. Director of Prisons [1924], 46 Phil.,
385). The judiciary, always alive to the dictates
of national welfare, can properly incline the
scales of its decisions in favor of that solution
which will most effectively promote the public
policy (Smith, Bell & Co., Ltd. vs. Natividad
[1919], 40 Phil., 136). All laws should receive a
sensible construction. General terms should be
so limited in their application as not lead to
injustice, oppression or an absurd consequence.
It will always, therefore, be presumed that the
legislature intended exceptions to its language,
which would avoid results of this character. The
reason of the law in such cases should prevail
over its letter (U. S. vs.Kirby, 7 Wall. [U.S.], 482;
19 Law. ed., 278; Church of Holy Trinity vs. U.
S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed.,
226; Jacobson vs. Massachussetts, 197 U. S.,
39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann.
Cas., 765; In re Allen, 2 Phil., 630). The duty of
the court in construing a statute, which is
reasonably susceptible of two constructions to
adopt that which saves is constitutionality,
includes the duty of avoiding a construction
which raises grave and doubtful constitutional
questions, if it can be avoided (U.
S. vs. Delaware & Hudson Co., U.S., 366; 29
Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of
International Law, and the legal doctrines cited
above, the judicial proceedings conducted
before the courts of justice, established here
during Japanese military occupation, merely
applying the municipal law of the territory, such
as the provisions of our Civil Code, which have
no political or military significance, should be
considered legal, valid and binding.
It is to be presumed that General Douglas
MacArthur is familiar with said rules and
principles, as International Law is an integral
part of the fundamental law of the land, in
accordance with the provisions of the
Constitution of the United States. And it is also
to be presumed that General MacArthur his
acted, in accordance with said rules and
principles of International Law, which have been
sanctioned by the Supreme Court of the United
States, as the nullification of all judicial
proceedings conducted before our courts, during
Japanese occupation would lead to injustice and
absurd results, and would be highly detrimental
to the public interests.
For the foregoing reasons, I concur in the
majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of
society, it must not be evaded. On its supremacy
depends the stability of states and nations. No
government can prevail without it. The
preservation of the human race itself hinges in
law.
Since time immemorial, man has relied on law
as an essential means of attaining his purposes,
his objectives, his mission in life. More than
twenty-two centuries before the Christian Era, on
orders of the Assyrian King Hammurabi, the first
code was engrave in black diorite with cunie
form characters. Nine centuries later Emperor
Hung Wu, in the cradle of the most ancient
civilization, compiled the Code of the Great
Ming. The laws of Manu were written in the
verdic India. Moses received at Sinai the ten
commandments. Draco, Lycurgus, Solon made
laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad
hordes with which he conquered the greater part
of the European and Asiastic continents.
Animal and plants species must follow the
mendelian heredity rules and other biological
387 | PART 1 C O N S T I 1 FULLTEXT
laws to survive. Thanks to them, the chalk cliffs
of the infusoria show the marvel of an animal so
tiny as to be imperceptible to the naked eye
creating a whole mountain. Even the inorganic
world has to conform the law. Planets and stars
follow the laws discovered by Kepler, known as
the law-maker of heavens. If, endowed with
rebellious spirit, they should happen to challenge
the law of universal gravity, the immediate result
would be cosmic chaos. The tiny and twinkling
points of light set above us on the velvet
darkness of the night will cease to inspire us with
dreams of more beautiful and happier worlds.
Again we are called upon to do our duty. Here is
a law that we must apply. Shall we shrink? Shall
we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be
useless if courts are not ready to apply them. It
is actual application to real issues which gives
laws the breath of life.
In the varied and confused market of human
endeavor there are so many things that might
induce us to forget the elementals. There are so
many events, so many problem, so many
preoccupations that are pushing among
themselves to attract our attention, and we might
miss the nearest and most familiar things, like
the man who went around his house to look for a
pencil perched on one of his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of
Liberation landed successfully in Leyte.
When victory in islands was accomplished, after
the most amazing and spectacular war
operations, General of the Army Douglas
MacArthur as a commander in Chief of the
American Army, decided to reestablish, in behalf
of the United States, the Commonwealth
Government.
Then he was confronted with the question as to
what policy to adopt in regards to the official acts
of the governments established in the
Philippines by the Japanese regime. He might
have thought of recognizing the validity of some
of said acts, but, certainly, there were acts which
he should declare null and void, whether against
the policies of the American Government,
whether inconsistent with military strategy and
operations, whether detrimental to the interests
of the American or Filipino peoples, whether for
any other strong or valid reasons.
But, which to recognize, and which not? He was
not in a position to gather enough information for
a safe basis to distinguished and classify which
acts must be nullified, and which must validated.
At the same time he had to take immediate
action. More pressing military matters were
requiring his immediate attention. He followed
the safe course: to nullify all the legislative,
executive, and judicial acts and processes under
the Japanese regime. After all, when the
Commonwealth Government is already
functioning, with proper information, he will be in
a position to declare by law, through its
Congress, which acts and processes must be
revived and validated in the public interest.
So on October 23, 1944, the Commander in
Chief issued the following proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN
CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my
command have landed in the Philippines
soil as a prelude to the liberation of the
entire territory of the Philippines; and
WHEREAS, the seat of the Government
of the Commonwealth of the Philippines
has been re-established in the
Philippines under President Sergio
Osmeña and the members of his
cabinet; and
WHEREAS, under enemy duress, a so-
called government styled as the
"Republic of the Philippines" was
established on October 14, 1943, based
upon neither the free expression of the
people's will nor the sanction of the
Government of the United States, and is
purporting to exercise Executive,
Judicial and Legislative powers of
government over the people;
Now, therefore, I, Douglas MacArthur,
General, United States Army, as
Commander in Chief of the military
forces committed to the liberation of the
Philippines, do hereby proclaim and
declare:
388 | PART 1 C O N S T I 1 FULLTEXT
 1. That the Government of the
Commonwealth of the
Philippines is, subject to the
supreme authority of the
Government of the United
States, the sole and the only
government having legal and
valid jurisdiction over the people
in areas of the Philippines free
of enemy occupation and
control;
2. The laws now existing on the
statute books of the
Commonwealth of the
Philippines and the regulation
promulgated pursuant thereto
are in full force and effect and
legally binding upon the people
in areas of the Philippines free
of enemy occupation and
control; and
3. That all laws, regulations and
processes of any other
government in the Philippines
than that of the said
Commonwealth are null and
void and without legal effect in
areas of the Philippines free
enemy occupation and control;
and
I do hereby announce my purpose
progressively to restore and extend to
the people of the Philippines the sacred
right of government by constitutional
process under the regularly constituted
Commonwealth Government as rapidly
as the several occupied areas are
liberated to the military situation will
otherwise permit;
I do enjoin upon all loyal citizens of the
Philippines full respect for and
obedience to the Constitution of the
Commonwealth of the Philippines and
the laws, regulations and other acts of
their duly constituted government whose
seat is now firmly re-established on
Philippine soil.
October 23, 1944.
DOUGL
AS
MACAR
THUR
General
U. S.
Army
Comma
nder in
Chief
IS THE OCTOBER PROCLAMATION
LAW?
In times of war the Commander in Chief of an
army is vested with extraordinary inherent
powers, as a natural result of the nature of the
military operations aimed to achieve the
purposes of his country in the war, victory being
paramount among them.
Said Commander in Chief may establish in the
occupied or reoccupied territory, under his
control, a complete system of government; he
may appoint officers and employees to manage
the affairs of said government; he may issue
proclamations, instructions, orders, all with the
full force of laws enacted by a duly constituted
legislature; he may set policies that should be
followed by the public administration organized
by him; he may abolish the said agencies. In
fact, he is the supreme ruler and law-maker of
the territory under his control, with powers
limited only by the receipts of the fundamental
laws of his country.
California, or the port of San Francisco,
had been conquered by the arms of the
United States as early as 1846. Shortly
afterward the United States had military
possession of all upper California. Early
in 1847 the President, as constitutional
commander in chief of the army and
navy, authorized the military and naval
commander of our forces in California to
exercise the belligerent rights of a
conqueror, and form a civil government
for the conquered country, and to
impose duties on imports and tonnage
as military contributions for the support
of the government, and of the army
which has the conquest in possession. .
. Cross of Harrison, 16 Howard, 164,
189.)
In May, 1862, after the capture of New
Orleans by the United States Army,
General Butler, then in command of the
army at that place, issued a general
order appointing Major J. M. Bell,
volunteer aide-de-camp, of the division
staff, provost judge of the city, and
directed that he should be obeyed and
respected accordingly. The same order
appointed Capt. J. H. French provost
marshal of the city, the Capt. Stafford
389 | PART 1 C O N S T I 1 FULLTEXT
deputy provost marshal. A few days
after this order the Union Bank lent to
the plaintiffs the sum of $130,000, and
subsequently, the loan not having been
repaid, brought suit before the provost
judge to recover the debt. The defense
was taken that the judge had no
jurisdiction over the civil cases, but
judgement was given against the
borrowers, and they paid the money
under protest. To recover it back is the
object of the present suit, and the
contention of the plaintiffs is that the
judgement was illegal and void, because
the Provost Court had no jurisdiction of
the case. The judgement of the District
Court was against the plaintiffs, and this
judgement was affirmed by the Supreme
Court of the State. To this affirmance
error is now assigned.
The argument of the plaintiffs in error is
that the establishment of the Provost
Court, the appointment of the judge, and
his action as such in the case brought
by the Union Bank against them were
invalid, because in violation of the
Constitution of the United States, which
vests the judicial power of the General
government in one Supreme Court and
in such inferior courts as Congress may
from time to time ordain and establish,
and under this constitutional provision
they were entitled to immunity from
liability imposed by the judgment of the
Provost Court. Thus, it is claimed, a
Federal question is presented, and the
highest court of the State having
decided against the immunity claimed,
our jurisdiction is invoked.
Assuming that the case is thus brought
within our right to review it, the
controlling question is whether the
commanding general of the army which
captured New Orleans and held it in
May 1862, had authority after the
capture of the city to establish a court
and appoint a judge with power to try
and adjudicate civil causes. Did the
Constitution of the United States prevent
the creation of the civil courts in
captured districts during the war of the
rebellion, and their creation by military
authority?
This cannot be said to be an open
question. The subject came under the
consideration by this court in The
Grapeshot, where it was decided that
when, during the late civil war, portions
of the insurgent territory were occupied
by the National forces, it was within the
constitutional authority of the President,
as commander in chief, to establish
therein provisional courts for the hearing
and determination of all causes arising
under the laws of the States or of the
United States, and it was ruled that a
court instituted by President Lincoln for
the State of Louisiana, with authority to
hear, try, and determine civil causes,
was lawfully authorized to exercise such
jurisdiction. Its establishment by the
military authority was held to be no
violation of the constitutional provision
that "the judicial power of the United
States shall be vested in one Supreme
Court and in such inferior courts as the
Congress may form time to time ordain
and establish." That clause of the
Constitution has no application to the
abnormal condition of conquered
territory in the occupancy of the
conquering, army. It refers only to courts
of United States, which military courts
are not. As was said in the opinion of the
court, delivered by Chief Justice Chase,
in The Grapeshot, "It became the duty of
the National government, wherever the
insurgent power was overthrown, and
the territory which had been dominated
by it was occupied by the National
forces, to provide, as far as possible, so
long as the war continued, for the
security of the persons and property and
for the administration of justice. The duty
of the National government in this
respect was no other than that which
devolves upon a regular belligerent,
occupying during war the territory of
another belligerent. It was a military
duty, to be performed by the President,
as Commander in Chief, and instructed
as such with the direction of the military
force by which the occupation was
held."
Thus it has been determined that the
power to establish by military authority
courts for the administration of civil as
well as criminal justice in portions of the
insurgent States occupied by the
National forces, is precisely the same as
that which exists when foreign territory
has been conquered and is occupied by
the conquerors. What that power is has
several times been considered. In
Leitensdorfer & Houghton vs. Webb,
may be found a notable illustration.
Upon the conquest of New Mexico, in
1846, the commanding officer of the
390 | PART 1 C O N S T I 1 FULLTEXT
conquering army, in virtue of the power
of conquest and occupancy, and with
the sanction and authority of the
President, ordained a provisional
government for the country. The
ordinance created courts, with both civil
and criminal jurisdiction. It did not
undertake to change the municipal laws
of the territory, but it established a
judicial system with a superior or
appellate court, and with circuit courts,
the jurisdiction of which declared to
embrace, first, all criminal causes that
should not otherwise provided for by
law; and secondly, original and
exclusive cognizance of all civil cases
not cognizable before the prefects and
alcades. But though these courts and
this judicial system were established by
the military authority of the United
States, without any legislation of
Congress, this court ruled that they were
lawfully established. And there was no
express order for their establishment
emanating from the President or the
Commander in Chief. The ordinance
was the act of the General Kearney the
commanding officer of the army
occupying the conquered territory.
In view of these decisions it is not to be
questioned that the Constitution did not
prohibit the creation by the military
authority of court for the trial of civil
causes during the civil war in conquered
portions of the insurgent States. The
establishment of such courts is but the
exercise of the ordinary rights of
conquest. The plaintiffs in error,
therefore, had no constitutional immunity
against subjection to the judgements of
such courts. They argue, however, that
if this be conceded, still General Butler
had no authority to establish such a
court; that the President alone, as a
Commander in Chief, had such
authority. We do not concur in this view.
General Butler was in command of the
conquering and the occupying army. He
was commissioned to carry on the war
in Louisina. He was, therefore, invested
with all the powers of making war, so far
as they were denied to him by the
Commander in Chief, and among these
powers, as we have seen, was of
establishing courts in conquered
territory. It must be presumed that he
acted under the orders of his superior
officer, the President, and that his acts,
in the prosecution of the war, were the
acts of his commander in chief.
(Mechanics' etc. Bank vs. Union Bank,
89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when
General of the Army Douglas MacArthur issued
on October Proclamation, he did it in the
legitimate exercise of his powers. He did it as
the official representative of the supreme
authority of the United States of America.
Consequently, said proclamation is legal, valid,
and binding.
Said proclamation has the full force of a law. In
fact, of a paramount law. Having been issued in
the exercise of the American sovereignty, in
case of conflict, it can even supersede, not only
the ordinary laws of the Commonwealth of the
Philippines, but also our Constitution itself while
we remain under the American flag.
"PROCESS" IN THE OCTOBER
PROCLAMATION
In the third section of the dispositive part of the
October Proclamation, it is declared that all laws,
regulations and processes of any other
government in the Philippines than that of the
Commonwealth, are null and void.
Does the word "processes" used in the
proclamation include judicial processes?
In its broadest sense, process is synonymous
with proceedings or procedures and embraces
all the steps and proceedings in a judicial cause
from it commencement to its conclusion.
PROCESS. In Practice. — The means
of compelling a defendant to appear in
court after suing out the original writ, in
civil, and after indictment, in criminal
cases.
The method taken by law to compel a
compliance with the original writ or
command as of the court.
A writ, warrant, subpoena, or other
formal writing issued by authority law;
also the means of accomplishing an
end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51
N. W., 48; the means or method pointed
out by a statute, or used to acquire
jurisdiction of the defendants, whether
by writ or notice. Wilson vs.R. Co. (108
Mo., 588; 18 S. W., 286; 32 Am. St.
Rep., 624). (3 Bouvier's Law Dictionary,
p. 2731.)
391 | PART 1 C O N S T I 1 FULLTEXT
A. Process generally. 1. Definition. — As
a legal term process is a generic word of
every comprehensive signification and
many meanings. It is broadest sense it
is equivalent to, or synonymous with,
"proceedings" or "procedure," and
embraces all the steps and proceedings
in a cause from its commencement to its
conclusion. Sometimes the term is also
broadly defined as the means whereby a
court compels a compliance with it
demands. "Process" and "writ" or "writs"
are synonymous in the sense that every
writ is a process, and in a narrow sense
of the term "process" is limited to judicial
writs in an action, or at least to writs or
writings issued from or out of court,
under the seal thereof, and returnable
thereto; but it is not always necessary to
construe the term so strictly as to limit it
to a writ issued by a court in the
exercise of its ordinary jurisdiction; the
term is sometimes defined as a writ or
other formal writing issued by authority
of law or by some court, body, or official
having authority to issue it; and it is
frequently used to designate a means,
by writ or otherwise , of acquiring
jurisdiction of defendant or his property,
or of bringing defendant into, or
compelling him to appear in, court to
answer.
As employed in the statutes the legal
meaning of the word "process" varies
according to the context, subject matter,
and spirit of the statute in which it
occurs. In some jurisdictions codes or
statutes variously define "process" as
signifying or including: A writ or
summons issued in the course of judicial
proceedings; all writs, warrants,
summonses, and orders of courts of
justice or judicial officers; or any writ,
declaration, summons, order, or
subpoena whereby any action, suit or
proceeding shall be commenced, or
which shall be issued in or upon any
action, suit or proceeding. (50 C. J., PP.
441, 442.)
The definition of "process" given by Lord
Coke comprehends any lawful warrant,
authority, or proceeding by which a man
may be arrested. He says: "Process of
law is two fold, namely, by the King's
writ, or by proceeding and warrant,
either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169,
170; State vs. Shaw, 50 A., 869; 73 Vt.,
149.)
Baron Comyn says that process, in a
large acceptance, comprehends the
whole proceedings after the original and
before judgement; but generally it
imports the writs which issue out of any
court to bring the party to answer, or for
doing execution, and all process out of
the King's court ought to be in the name
of the King. It is called "process"
because it proceeds or goes upon
former matter, either original or judicial.
Gilmer, vs.Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition,
1940 edition, p. 147.)
In a broad sense the word "process"
includes the means whereby a court
compels the appearance of the
defendant before it, or a compliance with
it demands, and any every writ, rule
order, notice, or decree, including any
process of execution that may issue in
or upon any action, suit, or legal
proceedings, and it is not restricted to
mesne process. In a narrow or restricted
sense it is means those mandates of the
court intending to bring parties into court
or to require them to answer
proceedings there pending. (Colquitt
Nat. Bank vs. Poitivint, 83 S. E., 198,
199; 15 Ga. App., 329. (34 Words and
Phrases, permanent edition, 1940
edition, p. 148.)
A "process" is an instrument in an
epistolary from running in the name of
the sovereign of a state and issued out
of a court of justice, or by a judge
thereof, at the commencement of an
action or at any time during its progress
or incident thereto, usually under seal of
the court, duly attested and directed to
some municipal officer or to the party to
be bound by it, commanding the
commission of some act at or within a
specified time, or prohibiting the doing of
some act. The cardinal requisites are
that the instrument issue from a court of
justice, or a judge thereof; that it run in
the name of the sovereign of the state;
that it be duly attested, but not
necessarily by the judge, though usually,
but not always, under seal; and that it be
directed to some one commanding or
prohibiting the commission of an act.
Watson vs. Keystone Ironworks Co., 74
P., 272, 273; 70 Kan., 43. (34 Words
and Phrases, permanent edition, 1940
edition, p. 148.)
392 | PART 1 C O N S T I 1 FULLTEXT
Jacobs in his Law Dictionary says:
"Process" has two qualifications: First, it
is largely taken for all proceedings in
any action or prosecution, real or
personal, civil or criminal, from the
beginning to the end; secondly, that is
termed the "process" by which a man is
called into any temporal court, because
the beginning or principal part thereof,
by which the rest is directed or taken.
Strictly, it is a proceeding after the
original, before the judgement. A policy
of fire insurance contained the condition
that if the property shall be sold or
transferred, or any change takes place
in title or possession, whether by legal
process or judicial decree or voluntary
transfer or convenience, then and in
every such case the policy shall be void.
The term "legal process," as used in the
policy, means what is known as a writ;
and, as attachment or execution on the
writs are usually employed to effect a
change of title to property, they are or
are amongst the processes
contemplated by the policy. The words
"legal process" mean all the
proceedings in an action or proceeding.
They would necessarily embrace the
decree, which ordinarily includes the
proceedings. Perry vs. Lorillard Fire Ins.
Co., N. Y., 6 Lans., 201, 204. See, also,
Tipton vs. Cordova, 1 N. M., 383, 385.
(34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
"Process" in a large acceptation, is
nearly synonymous with "proceedings,"
and means the entire proceedings in an
action, from the beginning to the end. In
a stricter sense, it is applied to the
several judicial writs issued in an action.
Hanna vs. Russell, 12 Minn., 80, 86
(Gil., 43, 45). (34 Words and Phrases,
permanent edition, 1940, edition 149.)
The term "process" as commonly
applied, intends that proceeding by
which a party is called into court, but it
has more enlarged signification, and
covers all the proceedings in a court,
from the beginning to the end of the suit;
and, in this view, all proceedings which
may be had to bring testimony into
court, whether viva voceor in writing,
may be considered the process of the
court. Rich vs. Trimple, Vt., 2 Tyler, 349,
350. Id.
"Process" in its broadest sense
comprehends all proceedings to the
accomplishment of an end, including
judicial proceedings. Frequently its
signification is limited to the means of
bringing a party in court. In the
Constitution process which at the
common law would have run in the
name of the king is intended. In the
Code process issued from a court is
meant. McKenna vs. Cooper, 101 P.,
662, 663; 79 Kan., 847, quoting
Hanna vs. Russel, 12 Minn., 80. (Gil., 43
); Black Com. 279; Bou vs. Law. Dict.
(34 Words and Phrases, permanent
edition 1940 edition, p. 149.)
"Judicial process" includes the mandate
of a court to its officers, and a means
whereby courts compel the appearance
of parties, or compliance with its
commands, and includes a
summons. Ex parte Hill, 51 So., 786,
787; 165 Ala., 365.
"Judicial process" comprehends all the
acts of then court from the beginning of
the proceeding to its end, and in a
narrower sense is the means of
compelling a defendant to appear in
court after suing out the original writ in
civil case and after the indictment in
criminal cases, and in every sense is the
act of the court and includes any means
of acquiring jurisdiction and includes
attachment, garnishment, or execution,
and also a writ. Blair vs. Maxbass
Security Bank of Maxbass, 176 N. W.,
98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940
edition, p. 328.)
There is no question that the word process, as
used in the October Proclamation, includes all
judicial processes or proceedings.
The intention of the author of the proclamation of
including judicial processes appears clearly in
the preamble of the document.
The second "Whereas," states that so-called
government styled as the "Republic of the
Philippines," based upon neither the free
expression of the people's will nor the sanction
of the Government of the United States, and is
purporting to the exercise Executive, Judicial,
and Legislative powers of government over the
people."
It is evident from the above-mentioned words
that it was the purpose of General MacArthur to
declare null and void all acts of government
393 | PART 1 C O N S T I 1 FULLTEXT
under the Japanese regime, and he used, in
section 3 of he dispositive part, the word laws,
as pertaining to the legislative branch, the word
regulations, as pertaining to the executive
branch, and lastly, the word processes, as
pertaining to the judicial branch of the
government which functioned under the
Japanese regime.
It is reasonable to assume that he might include
in the word "process." besides those judicial
character, those of executive or administrative
character. At any rate, judicial processes cannot
be excluded.
THE WORDS OF PROCLAMATION EXPRESS
UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a
way that it is impossible to make a mistake as to
the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man
who had ever sat in the Supreme Court of the
United States, the following:
When the words in their literal sense
have a plain meaning, courts must be
very cautious in allowing their
imagination to give them a different one.
Guild vs. Walter, 182 Mass., 225, 226
(1902)
Upon questions of construction when
arbitrary rule is involved, it is always
more important to consider the words
and the circumstances than even strong
analogies decisions. The successive
neglect of a series of small distinctions,
in the effort to follow precedent, is very
liable to end in perverting instruments
from their plain meaning. In no other
branch of the law (trusts) is so much
discretion required in dealing with
authority. . . . There is a strong
presumption in favor of giving them
words their natural meaning, and
against reading them as if they said
something else, which they are not fitted
to express. (Merrill vs. Preston, 135
Mass., 451, 455 (1883).
When the words of an instrument are free from
ambiguity and doubt, and express plainly, clearly
and distinctly the sense of the framer, there is no
occasion to resort to other means of
interpretation. It is not allowable to interpret what
needs no interpretation.
Very strong expression have been used by the
courts to emphasize the principle that they are to
derive their knowledge of the legislative intention
from the words or language of the statute itself
which the legislature has used to express it. The
language of a statute is its most natural guide.
We are not liberty to imagine an intent and bind
the letter to the intent.
The Supreme Court of the United States said:
"The primary and general rule of statutory
construction is that the intent of the law-maker is
to be found in the language that he has used. He
is presumed to know the meaning of the words
and the rules of grammar. The courts have no
function of legislation, and simply seek to
ascertain the will of the legislator. It is true that
there are cases in which the letter of the statute
is not deemed controlling, but the cases are few
and exceptional and only arise where there are
cogent reasons for believing that the letter does
not fully and accurately disclose the intent. No
mere ommission, no mere failure to provide for
contingencies, which it may seem wise should
have specifically provided for will justify any
judicial addition to the language of the statute."
(United States vs. Goldenberg, 168 U. S., 95,
102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of
the Philippines shall be the sole and only
government in our country; that our laws are in
full force and effect and legally binding; that "all
laws, regulations and processes of any other
government are null and void and without legal
effect", are provisions clearly, distinctly,
unmistakably expressed in the October
Proclamation, as to which there is no possibility
of error, and there is absolutely no reason in
trying to find different meanings of the plain
words employed in the document.
As we have already seen, the annulled
processes are precisely judicial processes,
procedures and proceedings, including the one
which is under our consideration.
THE OCTOBER PROCLAMATION
ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no
possible mistakes as to the meaning of the
words employed in the October Proclamation,
and the text of the document expresses, in clear-
cut sentences, the true purposes of its author, it
might not be amiss to state here what was the
policy intended to be established by said
proclamation.
394 | PART 1 C O N S T I 1 FULLTEXT
It is a matter of judicial knowledge that in the
global war just ended on September 2, 1945, by
the signatures on the document of unconditional
surrender affixed by representatives of the
Japanese government, the belligerents on both
sides resorted to what may call war weapons of
psychological character.
So Japan, since its military forces occupied
Manila, had waged an intensive campaign
propaganda, intended to destroy the faith of the
Filipino people in America, to wipe out all
manifestations of American or occidental
civilization, to create interest in all things
Japanese, which the imperial officers tried to
present as the acme of oriental culture, and to
arouse racial prejudice among orientals and
occidentals, to induce the Filipinos to rally to the
cause of Japan, which she tried to make us
believe is the cause of the inhabitants of all East
Asia.
It is, then, natural that General MacArthur should
take counter-measures to neutralize or annul
completely all vestiges of Japanese influence,
specially those which might jeopardize in any
way his military operations and his means of
achieving the main objective of the campaign of
the liberation, that is, to restore in our country
constitutional processes and the high ideals
constitute the very essence of democracy.
It was necessary to free, not only our territory,
but also our spiritual patrimony. It was
necessary, not only to restore to us the
opportunity of enjoying the physical treasures
which a beneficent Providence accumulated on
this bountiful land, the true paradise in the
western Pacific, but to restore the full play of our
ideology, that wonderful admixture of sensible
principles of human conduct, bequeathed to us
by our Malayan ancestors, the moral principles
of the Christianity assimilated by our people from
teachers of Spain, and the common-sense rules
of the American democratic way of life.
It was necessary to free that ideology from any
Japanese impurity.
Undoubtedly, the author of the proclamation
thought that the laws, regulations, and
processes of all the branches of the
governments established under the Japanese
regime, if allowed to continue and to have effect,
might be a means of keeping and spreading in
our country the Japanese influence, with the
same deadly effects as the mines planted by the
retreating enemy.
The government offices and agencies which
functioned during the Japanese occupation
represented a sovereignty and ideology
antagonistic to the sovereignty and ideology
which MacArthur's forces sought to restore in
our country.
Under chapter I of the Japanese Constitution, it
is declared that Japan shall reigned and
governed by a line Emperors unbroken for ages
eternal (Article 1); that the Emperor is sacred
and inviolable (Article 3); that he is the head of
the Empire, combining in himself the rights of the
sovereignty (Article 4); that he exercises the
legislative power (Article 5); that he gives
sanction to laws, and orders to be promulgated
and executed (Article 6);that he has the supreme
command of the Army and Navy (Article 11); that
he declares war, makes peace, and concludes
treaties (Article 13).
There is no reason for allowing to remain any
vestige of Japanese ideology, the ideology of a
people which as confessed in a book we have at
our desk, written by a Japanese, insists in doing
many things precisely in a way opposite to that
followed by the rest of the world.
It is the ideology of a people which insists in
adopting the policy of self-delusion; that believes
that their Emperor is a direct descendant of gods
and he himself is a god, and that the typhoon
which occured on August 14, 1281, which
destroyed the fleet with which Kublai Khan tried
to invade Japan was the divine wind of Ise; that
defies the heinous crime of the ronin, the 47
assassins who, in order to avenge the death of
their master Asano Naganori, on February 3,
1703, entered stealthily into the house of
Yoshinaka Kiro and killed him treacherously.
It is an ideology which
dignifies harakiri or sepukku, the most bloody
and repugnant from suicide, and on September
13, 1912, on the occasion of the funeral of
Emperor Meiji, induced General Maresuke Nogi
and his wife to practice the abhorrent "junshi",
and example of which is offered to us in the
following words of a historian:
When the Emperor's brother Yamato
Hiko, died in 2 B. C., we are told that,
following the occasion, his attendants
were assembled to from the hito-
bashira (pillar-men) to gird the grave.
They were buried alive in circle up to the
neck around the thomb and "for several
days they died not, but wept and wailed
day night. At last they died not, but wept
and wailed day night. At last they did not
395 | PART 1 C O N S T I 1 FULLTEXT
 rotted. Dogs and cows gathered and ate
them." (Gowen, an Outline of History of
Japan, p. 50.)
The practice shows that the Japanese are the
spiritual descendants of the Sumerians, the
ferocious inhabitants of Babylonia who, 3500
years B. C., appeared in history as the first
human beings to honor their patesis by killing
and entombing with him his window, his
ministers, and notable men and women of his
kingdom, selected by the priests to partake of
such abominable honor. (Broduer, The Pageant
of Civilization, pp. 62-66.)
General MacArthur sought to annul completely
the officials acts of the governments under the
Japanese occupation, because they were done
at the shadow of the Japanese dictatorship, the
same which destroyed the independence of
Korea, the "Empire of Morning Frehsness"; they
violated the territorial integrity of China, invaded
Manchuria, and initiated therein the deceitful
system of puppet governments, by designating
irresponsible Pu Yi as Emperor of Manchukuo;
they violated the trusteeship granted by the
Treaty of Versailles by usurping tha mandated
islands in the Pacific; they initiated that they call
China Incident, without war declaration, and,
therefore, in complete disregard of an elemental
international duty; they attacked Pearl Harbor
treacherously, and committed a long series of
the flagrant violations of international law that
have logically bestowed on Japan the title of the
bandit nation in the social world.
The conduct of the Japanese during the
occupation shows a shocking an anchronism of
a modern world power which seems to be re-
incarnation of one whose primitive social types
of pre-history, whose proper place must be
found in an archeological collection. It
represents a backward jump in the evolution of
ethical and juridical concepts, a reversion that,
more than a simple pathological state,
represents a characteristics and well defined
case of sociological teratology.
Since they entered the threshold of our capital,
the Japanese had announced that for every one
of them killed they would kill ten prominent
Filipinos. They promised to respect our rights by
submitting us to the wholesale and
indiscriminate slapping, tortures, and atrocious
massacres. Driving nails in the cranium,
extraction of teeth and eyes, burnings of organs,
hangings, diabolical zonings, looting of
properties, establishments of redlight districts,
machine gunning of women and children,
interment of alive persons, they are just mere
preludes of the promised paradised that they
called "Greater East Asia Co-Prosperity
Sphere".
They promised religious liberty by compelling all
protestant sects to unite, against the religious
scruples and convictions of their members, in
one group, and by profaning convents,
seminaries, churches, and other cult centers of
the Catholics, utilizing them as military barracks,
munitions dumps, artillery base, deposits of
bombs and gasoline, torture chambers and
zone, and by compelling the government officials
and employees to face and to bow in adoration
before that caricature of divinity in the imperial
palace of Tokyo.
The Japanese offered themselves to be our
cultural mentors by depriving us of the use of our
schools and colleges, by destroying our books
and other means of culture, by falsifying the
contents of school texts, by eliminating free
press, the radio, all elemental principles of
civilized conduct, by establishing classes of
rudimentary Japanese so as to reduce the
Filipinos to the mental level of the rude
Japanese guards, and by disseminating all kinds
of historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race
affinity, they had the insolence of calling us their
brothers, without the prejuce of placing of us in
the category of slaves, treating the most
prominent Filipinos in a much lower social and
political category than that of the most ignorant
and brutal subject of the Emperor.
The civil liberties of the citizens were annulled.
Witnesses and litigants were slapped and
tortured during investigations. In the prosecuting
attorney's offices, no one was safe. When the
Japanese arrested a person, the lawyer who
dared to intercede was also placed under arrest.
Even courts were not free from their dispotic
members. There were judges who had to
trample laws and shock their conscience in order
not to disgust a Nipponese.
The most noble of all professions, so much so
that the universities of the world could not
conceive of higher honor that may be conferred
than that of Doctor of Laws, became the most
despised. It was dangerous to practice the
profession by which faith in the effectiveness of
law is maintained; citizens feel confident in the
protection of their liberties, honor, and dignity;
the weak may face the powerful; the lowest
citizen is not afraid of the highest official; civil
equality becomes reality; justice is admnistered
with more efficiency; and democracy becomes
the best system of government and the best
396 | PART 1 C O N S T I 1 FULLTEXT
guaranty for the welfare and happiness of the
individual human being. In fact, the profession of
law was annulled, and the best lawyers for the
unfortunate prisoners in Fort Santiago and other
centers of torture were the military police,
concubines, procurers, and spies, the providers
of war materials and shameful pleasures, and
the accomplices in fraudulent transactions,
which were the specialty of many naval and
military Japanese officers.
The courts and Filipino government officials
were completely helpless in the question of
protecting the constitutional liberties and
fundamental rights of the citizens who happen to
be unfortunate enough to fall under the dragnet
of the hated kempei. Even the highest
government officials were not safe from arrest
and imprisonment in the dreaded military
dungeons, where torture or horrible death were
always awaiting the defenseless victim of the
Japanese brutality.
May any one be surprised if General MacArthur
decided to annul all the judicial processes?
The evident policy of the author of the October
Proclamation can be seen if we take into
consideration the following provisions of the
Japanese Constitution:
ART. 57. The Judicature shall be
exercised by the Courts of Law
according to law, in the name of the
Emperor.
ART. 61. No suit at law, which relates to
rights alleged to have been infringed by
the illegal measures of the executive
authority .. shall be taken cognizance of
by a Court of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the
October Proclamation.
Nobody dared challenge the authority of the
military Commander in Chief who issued it.
Certainly not because of the awe aroused by the
looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the
military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of
Japan, the gallant soldier under whose authority
the Emperor of the Japan, who is supposed to
rule supreme for ages as a descendant of gods,
is receiving orders with the humility of a prisoner
of war.
No challenge has been hurled against the
proclamation or the authority of the author to
issue it, because everybody acknowledges the
full legality of its issuance.
But because the proclamation will affect the
interest and the rights of a group of individuals,
and to protect the same, a way is being sought
to neutralize the effect of the proclamation.
The way found is to invoke international law. The
big and resounding word is considered as a
shibboleth powerful enough to shield the
affected persons from the annulling impact.
Even then, international law is not invoked to
challenge the legality or authority of the
proclamation, but only to construe it in a
convenient way so that judicial processes during
the Japanese occupation, through an
exceptional effort of the imagination, might to
segregated from the processes mentioned in the
proclamation.
An author said that the law of nations, the "jus
gentiun", is not a fixed nor immutable science.
On the country, it is developing incessantly, it is
perpetually changing in forms. In each turn it
advances or recedes, according to the
vicissitudes of history, and following the
monotonous rythm of the ebb and rise of the tide
of the sea.
Le driot des gens, en effet, n'est point
une science fixe est immuable: bein au
contraire, il se developpe sans cesse, il
change eternellement de formes; tour il
avance et il recule, selon less
vicissitudes de histoire et suivan un
rhythm monotone qui est comme le flux
et le reflux d'un mer. (M. Revon, De
l'existence du driot international sous la
republique romain.)
Another author has this to say:
International law, if it is or can be a
science at all, or can be, at most a
regulative science, dealing with the
conduct of States, that is, human beings
in a certain capacity; and its principles
and prescriptions are not, like those of
science proper, final and unchanging.
The substance of science proper is
already made for man; the substance of
international is actually made by man, —
and different ages make differently."
397 | PART 1 C O N S T I 1 FULLTEXT
 (Coleman Philippson, The International
Law and Custom of Ancient Greece of
Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand
still." (Pound, Interpretations of Legal History., p.
1. ) Justice Cardozo adds: "Here is the great
antimony confronting us at every turn. Rest and
motion, unrelieved and unchecked, are equally
destructive. The law, like human kind, if life is to
continue, must find some path compromise."
(The Growth of Law p. 2.) Law is just one of the
manifestations of human life, and "Life has
relations not capable of division into inflexible
compartments. The moulds expand and shrink,"
(Glanzer vs. Shepard, 233 N.Y., 236, 241.)
The characteristic plasticity of law is very
noticeable, much more than in any other
department, in international law.
In a certain matters it is clear we have
made substantial progress, but in other
points, he (M. Revon) maintains, we
have retrograded; for example, in the
middle ages the oath was not always
respected as faithfully as in ancient
Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims
the unquestioned right of the
belligerents to massacre the women and
the children of the enemy; and in our
more modern age the due declaration of
war which Roman always conformed to
has not been invariably observed.
(Coleman Philippson, The International
Law and Custom of Ancient Greece and
Rome, Vol. I, p. 209.)
Now let us see if any principle of international
law may effect the enforcement of the October
Proclamation.
In this study we should be cautioned not to allow
ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to
error, in view of the absence of codification and
statutory provisions.
Our Constitution provides:
The Philippines renounces war as an
instrument of national policy, and adopts
the generally accepted principles of
international law as part of the law of the
Nation. (Sec. 3, Art. II.)
There being no codified principles of
international law, or enactments of its rules, we
cannot rely on merely legal precepts.
With the exception of international conventions
and treaties and, just recently, the Charter of the
United Nations, adopted in San Francisco
Conference on June 26, 1945, we have to rely
on unsystemized judicial pronouncements and
reasonings and on theories, theses, and
propositions that we may find in the works of
authors and publicists.
Due to that characteristic pliability and
imprecision of international law, the drafters of
our Constitution had to content themselves with
"generally accepted principles."
We must insists, therefore, that the principles
should be specific and unmistakably defined and
that there is definite and conclusive evidence to
the effect that they generally accepted among
the civilized nations of the world and that they
belong to the current era and no other epochs of
history.
The temptation of assuming the role of a
legislator is greater in international law than in
any other department of law, since there are no
parliaments, congresses, legislative assemblies
which can enact laws and specific statutes on
the subject. It must be our concern to avoid
falling in so a great temptation, as its, dangers
are incalculable. It would be like building castles
in the thin air, or trying to find an exit in the thick
dark forest where we are irretrievably lost. We
must also be very careful in our logic. In so vast
a field as international law, the fanciful
wandering of the imagination often impair the
course of dialistics.
THE OCTOBER PROCLAMATION AND
INTERNATIONAL LAW
Is there any principle of international law that
may effect the October Proclamation?
We tried in vain to find out in the majority opinion
anything as to the existence of any principle of
international law under which the authority of
General MacArthur to issue the proclamation
can effectively be challenged.
No principle of international law has been, or
could be invoked as a basis for denying the
author of the document legal authority to issue
the same or any part thereof.
We awaited in vain for any one to dare deny
General MacArthur the authority, under
international law, to declare null and void and
without effect, not only the laws and regulations
of the governments under the Japanese regime,
398 | PART 1 C O N S T I 1 FULLTEXT
but all the processes of said governments,
including judicial processes.
If General MacArthur, as commander in Chief of
the American Armed Forces of Liberation, had
authority, full and legal, to issue the
proclamation, the inescapable result will be the
complete viodance and nullity of all judicial
processes, procedures, and proceedings of all
courts under the Japanese regime.
But those who are sponsoring the cause of said
judicial processes try to achieve their aim, not by
direct means, but by following a tortuous side-
road.
They accept and recognize the full authority of
the author of the proclamation to issue it and all
its parts, but they maintain that General
MacArthur did not and could not have in mind
the idea of nullifying the judicial processes
during the Japanese occupation, because that
will be in violation of the principles of
international law.
If we follow the reasoning of the majority opinion
we will have to reach the conlusion that the
world "processes" does not appear at all in the
October Proclamation.
It is stated more than once, and reiterated with
dogmatic emphasis, that under the principles of
international law the judicial processes under an
army occupation cannot be invalidated.
But we waited in vain for the specific principle of
international law, only one of those alluded to, to
be pointed out to us.
If the law exist, it can be pointed out. If the
principle exists, it can stated specifically. The
word is being used very often in plural,
principles, but we need only one to be
convinced.
The imagined principles are so shrouded in a
thick maze of strained analogies and reasoning,
that we confess our inability even to have a
fleeting glimpse at them through their thick and
invulnerable wrappers.
At every turn international law, the blatant words,
are haunting us with the deafening bray of a
trumpet, but after the transient sound has fled
away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which
are the very soul of international law, would
disappear too with the lighting speed of a
vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are
propounded: first, whether judicial acts and
proceedings during the Japanese occupation are
valid even after liberation; second whether the
October Proclamation had invalidated all
judgement and judicial proceedings under the
Japanese regime; and third, whether the present
courts of the Commonwealth may continue the
judicial proceedings pending at the time of
liberation.
As regards the first question, it is stated that it is
a legal tourism in political and international law
that all acts of a de facto government are good
and valid, that the governments established
during the Japanese occupation. that is, the
Philippine Executive Commission and the
Republic of the Philippines, were de
facto governments, and that it necessarily
follows that the judicial acts and proceedings of
the courts of those governments, "which are not
of a political complexion," were good and valid,
and by virtue of the principle of postliminium,
remain good and valid after the liberation.
In the above reasoning we will see right away
how the alleged legal truism in political and
international law, stated as a premise in a
sweeping way, as an absolute rule, is
immediately qualified by the exception as to
judicial acts and proceedings which are of a
"political complexion."
So it is the majority itself which destroys the
validity of what it maintains as a legal truism in
political and international law, by stating from the
beginning of the absolute proposition that all
acts and proceedings of the legislative,
executive, and judicial departments of a de
facto governments are good and valid.
It is be noted that no authority, absolutely no
authority, has been cited to support the absolute
and sweeping character of the majority
proposition as stated in their opinion.
No authority could be cited, because the majority
itself loses faith in the validity of such absolute
and sweeping proposition, by establishing an
unexplained exception as regards the judicial
acts and proceedings of a "political complexion."
Besides, it is useless to try to find in the
arguments of the majority anything that may
challenge the power, the authority of a de jure
government to annul the official acts of a de
facto government, or the legal and indisputable
authority of the restored legitimate government
399 | PART 1 C O N S T I 1 FULLTEXT
to refuse to recognize the official acts,
legislative, executive and judicial, of the usurping
government, once the same is ousted.
As to the second question, the majority argues
that the judicial proceedings and judgments of
the de factogovernments under the Japanese
regime being good and valid, "it should be
presumed that it was not, and could not have
been, the intention of General Douglas
MacArthur to refer to judicial processes, when
he used the last word in the October
Proclamation, and that it only refers to
government processes other than judicial
processes or court proceedings."
The weakness and absolute ineffectiveness of
the argument are self-evident.
It is maintained that when General MacArthur
declared the processes of the governments
under the Japanese regime null and void, he
could not refer to judicial processes, because
the same are valid and remained so under the
legal truism announced by the majority to the
effect that, under political and international law,
all official acts of a de facto government,
legislative, executive or judicial, are valid.
But we have seen already how the majority
excepted from said legal truism the judicial
processes of "political complexion."
And now it is stated that in annulling the
processes of the governments under Japanese
occupation, General MacArthur referred to
"processes other than judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts
and proceedings of legislative and executive
departments of a de factogovernments are good
and valid? Did it not maintain that they are so as
a "legal truism in political and international law?"
Now if the reasoning of the majority to the effect
that General MacArthur could not refer to judicial
processes because they are good and valid in
accordance with international law, why should
the same reasoning not apply to legislative and
executive processes?
Why does the majority maintain that,
notwithstanding the fact that, according that said
legal truism, legislative and executive official
acts of de facto governments are good and valid,
General MacArthur referred to the latter in his
annulling proclamation, but not to judicial
processes?
If the argument is good so as to exclude judicial
processes from the effect of the October
Proclamation, we can see no logic in considering
it bad with respect to legislative and executive
processes.
If the argument is bad with respect to legislative
and executive processes, there is no logic in
holding that it is not good with respect to judicial
processes.
Therefore, if the argument of the majority opinion
is good, the inevitable conclusion is that General
MacArthur did not declare null and void any
processes, at all, whether legislative processes,
executive processes, or judicial processes, and
that the word "processes" used by him in the
October Proclamation is a mere surplusage or
an ornamental literary appendix.
The absurdity of the conclusion unmasks the
utter futility of the position of the majority, which
is but a mere legal pretense that cannot stand
the least analysis or the test of logic.
A great legal luminary admonished that we must
have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting
hour.
It is admitted that the commanding general of a
belligerent army of occupation as an agent of his
government, "may not unlawfully suspend
existing laws and promulgate new ones in the
occupied territory if and when exigencies of the
military occupation demand such action," but it is
doubted whether the commanding general of the
army of the restored legitimate government can
exercise the same broad legislative powers.
We beg to disagree with a theory so
unreasonable and subversive.
We cannot accept that the commanding general
of an army of occupation, of a rebellious army, of
an invading army, or of a usurping army, should
enjoy greater legal authority during the illegal,
and in the case of the Japanese, iniquitous and
bestial occupation, than the official
representative of the legitimate government,
once restored in the territory wrested from the
brutal invaders and aggressors. We cannot
agree with such legal travesty.
Broad and unlimited powers are granted and
recognized in the commanding general of an
400 | PART 1 C O N S T I 1 FULLTEXT
army of invasion, but the shadow of the
vanishing alleged principle of international law is
being brandished to gag, manacle, and make
completely powerless the commander of an
army of liberation to wipe out the official acts of
the government for usurpation, although said
acts might impair the military operation or
neutralize the public policies of the restored
legitimate government.
We are not unmindful of the interest of the
persons who might be adversely affected by the
annulment of the judicial processes of the
governments under the Japanese regime, but
we cannot help smiling when we hear that chaos
will reign or that the world will sink.
It is possible that some criminals will be let loose
unpunished, but nobody has ever been alarmed
that the President, in the exercise of his
constitutional powers of pardon and amnesty,
had in the past released many criminals from
imprisonment. And let us not forget that due to
human limitations, in all countries, under all
governments, in peace or in war, there were,
there are, and there will always be unpunished
criminals, and that situation never caused
despair to any one.
We can conceive of inconveniences and
hardships, but they are necessary contributions
to great and noble purposes. Untold sacrifices
were always offered to attain high ideals and in
behalf of worthy causes.
We cannot refrain from feeling a paternal
emotion for those who are trembling with all
sincerity because of the belief that the avoidance
of judicial proceedings of the governments under
the Japanese regime "would paralyze the social
life of the country." To allay such fear we must
remind them that the country that produced
many great hereos and martyrs; that contributed
some of highest morals figures that humanity
has ever produced in all history; which inhabited
by a race which was able to traverse in
immemorial times the vast expanses of the
Indian Ocean and the Pacific with inadequate
means of navigation, and to inhabit in many
islands so distantly located, from Madagascar to
the eastern Pacific; which made possible the
wonderful resistance of Bataan and Corregidor,
can not have a social life so frail as to be easily
paralyzed by the annulment of some judicial
proceedings. The Japanese vandalisms during
the last three years of nightmares and bestial
oppression, during the long period of our
national slavery, and the wholesale massacres
and destructions in Manila and many other cities
and municipalities and populated areas, were
not able to paralyze the social life of our people.
Let us not loss faith so easily in the inherent
vitality of the social life of the people and country
of Rizal and Mabini.
It is insinuated that because of the thought that
the representative of the restored sovereign
power may set aside all judicial processes of the
army of occupation, in the case to courts of a
future invasions, litigants will not summit their
cases to courts whose judgement may
afterwards be annulled, and criminals would not
be deterred from committing offenses in the
expectancy that they may escape penalty upon
liberation of the country. We hope that
Providence will never allow the Philippines to fall
again under the arms of an invading army, but if
such misfortune will happen, let the October
Proclamation serve as a notice to the ruthless
invaders that the official acts of the government
of occupation will not merit any recognition from
the legitimate government, especially if they
should not conduct themselves, as exemplified
by the Japanese, in accordance with the rules of
action of a civilized state.
One conclusive evidence of the untenableness
of the majority position is the fact that it had to
resort to Executive Order No. 37, issued on
March 10, 1945, providing "that all cases that
have heretofore been appealed to the Court of
Appeals shall be transmitted to the Supreme
Court for final decision." The far-fetched theory
is advanced that this provision impliedly
recognizes the court processes during the
Japanese military occupation, on the false
assumption that it refers to the Court of Appeals
existing during the Japanese regime. It is self-
evident that the Executive Order could have
referred only to the Commonwealth Court of
Appeals, which is the one declared abolished in
said order. Certainly no one will entertain the
absurd idea that the President of the Philippines
could have thought of abolishing the Court of
Appeals under the government during the
Japanese occupation. Said Court of Appeals
disappeared with the ouster of the Japanese
military administration from which it derived its
existence and powers. The Court of Appeals
existing on March 10, 1945, at the time of the
issuance of Executive Order No. 37, was the
Commonwealth Court of Appeals and it was the
only one that could be abolished.
Without discussing the correctness of principle
stated the majority opinion quotes from Wheaton
the following: "Moreover when it is said that
occupier's acts are valid and under international
law should not be abrogated by the subsequent
conqueror, it must be remembered that on
crucial instances exist to show that if his acts
should be reversed, any international wrong
401 | PART 1 C O N S T I 1 FULLTEXT
would be committed. What does happen is that
most matters are allowed to stand by the stored
government, but the matter can hardly be put
further than this." (Wheaton, International Law,
War, 7th English edition of 1944, p. 245)
Then it says that there is no doubt that the
subsequent conqueror has the right to abrogate
most of the acts of the occupier, such as the
laws, regulations and processes other than the
judicial of the government established by the
belligerent occupant.
It is evident that the statement just quoted is a
complete diversion from the principle stated in
the in an unmistakable way by Wheaton, who
says in definite terms that "it must be
remembered that no crucial instances exist to
show that if his acts (the occupant's) should be
reversed, any international wrong would be
committed."
It can be clearly seen that Wheaton does not
make any distinction or point out any exception.
But in the majority opinion the principle is
qualified, without stating any reason therefore,
by limiting the right of the restored government
to annul "most of the acts of the occupier" and
"processes other than judicial."
The statement made by the respondent judge
after quoting the above-mentioned principle, as
stated by Wheaton, to the effect that whether the
acts of military occupant should be considered
valid or not, is a question that is up to the
restored government to decide, and that there is
no rule of international law that denies to the
restored government the right to exercise its
discretion on the matter, is quoted without
discussion in the majority opinion.
As the statement is not disputed, wee are
entitled to presume that it is concurred in and,
therefore, the qualifications made in the
statement in the majority opinion seem to
completely groundless.
THE DUTIES IMPOSED ON OCCUPANT
ARMY ARE NOT LIMITATIONS TO THE
RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities
to show the many duties imposed by
international law on the military occupant of an
invaded country.
And from said duties it is deduced that the
legitimate government, once restored in his own
territory, is bound to respect all the official acts
of the government established by the usurping
army, except judicial processes political
complexion.
The reasoning calls for immediate opposition. It
is absolutely contrary to all principles of logic.
Between the duties imposed in the military
occupant and the legal prerogatives of the
legitimate government there are no logical
relationship or connection that might bind the
ones with the others.
The military occupants is duty bound to protect
the civil rights of the inhabitants, but why should
the legitimate government necessarily validate
the measures adopted by the said occupant in
the performance of this duty, if the legitimate
government believes his duty to annul them for
weighty reasons?
The military occupant is duty bound to establish
courts of justice. Why should the legitimate
government validate the acts of said courts, if it
is convinced that said courts were absolutely
powerless, as was the case during the Japanese
occupation, to stop the horrible abuses of the
military police, to give relief to the victims of
zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos — life,
property, and personal freedom?
The majority opinion recognizes in the military
occupant the power to annul the official acts of
the ousted and supplanted legitimate
government, a privilege which is inversely
denied to the last. This preference and
predilection in favor of the military occupant, that
is in favor of the invader and usurper, and
against the legitimate government, is simply
disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS
AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to
establish and maintain courts of justice in the
invaded territory, for the protection of the
inhabitants thereof. It is presumed that the
restored legitimate government will respect the
acts of said courts of the army of occupation.
Therefore, it is a principle of international law
that said acts are valid and should be respected
by the legitimate government. It is presumed that
General MacArthur is acquainted with such
principle, discovered or revealed through
presumptive operations, and it is presumed that
he had not the intention of declaring null and
void the judicial processes of the government
402 | PART 1 C O N S T I 1 FULLTEXT
during the Japanese regime. Therefore, his
October Proclamation, declaring null and void
and without effect "all processes" of said
governments, in fact, did not annul the Japanese
regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur
speaks in the October Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur,
General, United States Army, as Commander-in-
Chief of the military forces committed to the
liberation of the Philippines, do
hereby proclaim and declare:
xxx xxx xxx
3. That all laws, regulations and processes of
any other government in the Philippines than
that of the said Commonwealth are null and void
and without legal effect in areas of the
Philippines free of enemy occupation and
control. (emphasis supplied.)
General MacArthur says categorically
"all processes", but the majority insists on
reading differently, that, is: "NOT ALL
processes." The majority presume, suppose,
against the unequivocal meaning of simple and
well known words, that when General MacArthur
said "all processes", in fact, he said "not all
processes", because it is necessary, by
presumption, by supposition, to exclude judicial
processes.
If where General MacArthur says "all", the
majority shall insist on reading "not all", it is
impossible to foresee the consequences of such
so stubborn attitude, but it is possible to
understand how they reached the unacceptable
possible conclusion which we cannot be avoid
opposing and exposing.
Are we to adopt and follow the policy of deciding
cases submitted to our consideration, by
presumption and suppositions putting aside
truths and facts? Are we to place in the
documents presented to us, such as the October
Proclamation, different words than what are
written therein? Are we to read "not all", where it
is written "all"?
We are afraid to such procedure is not precisely
the most appropriate to keep public confidence
in the effectiveness of the administration of
justice.
That is why we must insists that in the October
Proclamation should be read what General
MacArthur has written in it, that is, that, besides
laws and regulations, he declared and
proclaimed null and void "ALL PROCESSES",
including naturally judicial processes, of the
governments under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO
JURISDICTION TO CONTINUE JAPANESE
REGIME JUDICIAL PROCESSES
Now we come to the third and last question
propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals
is defined, prescribed, and apportioned by
legislative act.
It is provided so in our Constitution. (Section 2,
Article VIII.)
The Commonwealth courts of justice are
continuations of the courts established before
the inauguration of the Commonwealth and
before the Constitution took effect on November
15, 1935. And their jurisdiction is the same as
provided by existing laws at the time of
inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission,
known as the Organic Act of the courts of justice
of the Philippines, is the one that defines the
jurisdiction of justice of the peace and municipal
courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention
here the jurisdiction of the Court of Appeals,
because the same has been abolished by
Executive Order No. 37.
No provision may be found in Act. No. 136, nor
in any other law of the Philippines, conferring on
the Commonwealth tribunals jurisdiction to
continue the judicial processes or proceedings of
tribunals belonging to other governments, such
as the governments established during the
Japanese occupation.
The jurisdiction of our justice of the peace and
municipal courts is provided in section 68,
chapter V, of Act No. 136. The original and
appellate jurisdiction of the Courts of First
Instance is provided in the sections 56, 57,
Chapter IV, of Act No. 136. The original and
appellate jurisdiction of the Supreme Court is
provided in 17 and 18, Chapter II, of the same
Act. The provisions of the above-cited do not
authorize, even implicitly, any of the decisions
and judgements of tribunals of the governments,
403 | PART 1 C O N S T I 1 FULLTEXT
nor to continue the processes or proceedings of
said tribunals.
NECESSITY OF ENABLING ACT UNDER THE
LEGAL DOCTRINE PREVAILING IN THE
PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the
judicial processes of the government established
during the Japanese occupation should be
considered valid or not, in order that said
processes could be continued and the
Commonwealth tribunals could exercise proper
jurisdiction to continue them, under the well-
established legal doctrine, prevailing not only in
the Philippines, but also in the proper enabling
law.
Almost a half a century ago, in the instructions
given by President McKinley on April 7, 1900, for
the guidance of the Philippine Commission, it
was stated that, in all the forms of the
govenment and administrative provisions which
they were authorized to prescribed, the
Commission should bear in mind that the
government which they were establishing was
designed not for the satisfaction of the
Americans or for the expression of their of their
theoretical views, but for the happiness, peace
and prosperity of the people of the Philippines,
and the measures adopted should be made to
conform to their customs, their habits, and even
their prejudices, to the fullest extent consistent
with the accomplishment of the indispensable
requisites of just and effective government.
Notwithstanding the policy so outlined, it was not
enough for the Philippine Commission to create
and establish the courts of justice provided in
Act No. 136, in order that said tribunals could
take cognizance and continue the judicial
proceedings of the tribunals existing in the
Philippines at the time the American occupation.
It needed specific enabling provisions in order
that the new tribunals might continue the
processes pending in the tribunals established
by the Spaniards, and which continued to
function until they were substituted by the courts
created by the Philippine Commission.
So it was done in regards to the transfer of the
cases pending before the Spanish Audiencia to
the newly created Supreme Court, in sections 38
and 39 of Act No. 136 quoted as follows:
SEC. 38. Disposition of causes, actions,
proceedings, appeals, records, papers,
and so forth, pending in the existing
Supreme Court and in the "Contencioso
Administravo." — All records, books,
papers, causes, actions, proceedings,
and appeals logged, deposited, or
pending in the existing Audiencia or
Supreme Court, or pending by appeal
before the Spanish tribunal called
"Contencioso Administravo," are
transferred to the Supreme Court above
provided for which, has the same power
and jurisdiction over them as if they had
been in the first instance lodged, filed, or
pending therein, or, in case of appeal,
appealed thereto.
SEC. 39. Abolition of existing Supreme
Court. — The existing Audiencia or
Supreme Court is hereby abolished, and
the Supreme Court provided by this Act
is substituted in place thereof.
Sections 64 and 65 of the same Act allowed the
same procedure as regards the transfer of cases
and processes pending in the abolished Spanish
Courts of First Instance to the tribunals of the
same name established by the Philippine
Commission.
SEC. 64. Disposition of records, papers,
causes, and appeals, now pending in
the existing Courts of First Instance. —
All records, books, papers, actions,
proceedings, and appeals lodged,
deposited, or pending in the Court of
First Instance as now constituted of or
any province are transferred to the Court
of First Instance of such province hereby
established, which shall have the same
power and jurisdiction over them as if
they had been primarily lodged,
deposited, filed, or commenced therein,
or in case of appeal, appealed thereto.
SEC. 65. Abolition of existing Courts of
First Instance. — The existing Courts
First Instance are hereby abolished, and
the Courts of First Instance provided by
this Act are substituted in place thereof.
The same procedure has been followed by the
Philippine Commission eventhough the courts of
origin of the judicial processes to be transferred
and continued belonged to the same
government and sovereignty of the courts which
are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of
all acts conferring upon American provost courts
in the Philippines jurisdiction over civil actions,
expressly provided that said civil actions shall be
transferred to the newly created tribunals.
404 | PART 1 C O N S T I 1 FULLTEXT
And it provided specifically that "the Supreme
Court, Courts of the First Instance and courts of
the justice of the peace established by this Act
(No. 136) are authorized to try and determine
the actions so transferred to them respectively
from the provost courts, in the same manner and
with the same legal effect as though such
actions had originally been commenced in the
courts created" by virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission
enacted the Organic Act of the City of Manila,
No. 183.
Two municipal courts for the city were created
by section 40 of said Act, one for the northern
side of Pasig River and the other for the
southern side.
They were courts with criminal jurisdiction or
identical cases under the jurisdiction of the
justices of the peace then existing in Manila.
Although both courts were of the same
jurisdiction, in order that the criminal cases
belonging to the justice of the peace courts may
be transferred to the municipal courts just
created, and the proceedings may be continued
by the same, the Philippine Commission
considered it necessary to pas the proper
enabling act.
So on August 5, 1901, it enacted Act No. 186,
section 2 of which provides that all criminal
cases and proceedings pending in the justices of
the peace of Manila are transferred to the
municipal courts, which are conferred the
jurisdiction to continue said cases and
proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was
convicted of murder by a military commission.
(Cabantag vs. Wolfe, 6 Phil., 273.) The decision
was confirmed on December 10, 1901, and his
execution by hanging was set for January
12,1902. .
On December 26, 1901, he fled, but surrendered
to the authorities on July 18, 1902. The Civil
Governor on December 2, 1903, commuted the
death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of
War, following instructions of the President.
Cabantag filed later a writ of habeas corpus on
the theory that, with the abolition of the military
commission which convicted him, there was no
existing tribunal which could order the execution
of the penalty of imprisonment.
The Supreme Court denied the writ, but stated
that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question
presented to the Supreme Court would have
been different.
Act No. 865, enacted on September 3, 1903, is
enabling law, wherein it is provided that
decisions rendered by the provost courts and
military commission shall be ordered executed
by the Courts of First Instance in accordance
with the procedure outlined in said Act.
It is evident from the foregoing that this Supreme
Court has accepted and confirmed the doctrine
of the necessity of an enabling act in order that
our Courts of First Instance could exercise
jurisdiction to execute the decision of the
abolished provost courts and military
commission.
It is evident that the doctrine is applicable, with
more force, to the judicial processes coming
from governments deriving their authority from a
foreign enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United
States, by enacting the Bill of the Philippines on
July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress
approved what the Philippine Commission did as
to the jurisdiction of the courts established and
transfer of cases and judicial processes, as
provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United
States government as part of its international
policy, as could be seen in Article XII of the
Treaty concluded with Spain on December 10,
1898, in Paris.
Even in 1866 the Congress of the United States
followed the same doctrine.
The suit, shown by the record, was
originally instituted in the District Court
of the United States for the District of
Louisiana, where a decree was
rendered for the libellant. From the
decree an appeal was taken to the
Circuit Court, where the case was
pending, when in 1861, the proceedings
405 | PART 1 C O N S T I 1 FULLTEXT
of the court were interrupted by the civil
war. Louisiana had become involved in
the rebellion, and the courts and officers
of the United States were excluded from
its limits. In 1862, however, the National
authority had been partially
reestablished in the State, though still
liable to the overthrown by the
vicissitudes of war. The troops of the
Union occupied New Orleans, and held
military possession of the city and such
other portions of the State as had
submitted to the General Government.
The nature of this occupation and
possession was fully explained in the
case of The Vinice.
Whilst it continued, on the 20th of
October, 1862, President Lincoln, by
proclamation, instituted a Provisional
Court of the State of Louisiana, with
authority, among other powers, to hear,
try, and determine all causes in
admiralty. Subsequently, by consent of
parties, this cause was transferred into
the Provisional Court thus, constituted,
and was heard, and a decree was again
rendered in favor of the libellants. Upon
the restoration of civil authority in the
State, the Provincial Court, limited in
duration, according to the terms of the
proclamation, by the event, ceased to
exist.
On the 28th of July, 1866, Congress
enacted that all suits, causes and
proceedings in the Provisional Court,
proper for the jurisdiction of the Circuit
Court of the United States for the
Eastern District of Louisiana, should be
transferred to that court, and heard, and
determined therein; and that all
judgements, orders, and decrees of the
Provisional Court in causes transferred
to the Circuit Court should at once
become the orders, judgements, and
decrees of that court, and might be
enforced, pleaded, and proved
accordingly.
It is questioned upon these facts
whether the establishment by the
President of a Provisional Court was
warranted by the Constitution.
xxx xxx xxx
We have no doubt that the Provisional
Court of Louisiana was properly
established by the President in the
exercise of this constitutional authority
during war; or that Congress had power,
upon the close of the war, and the
dissolution of the Provisional Court, to
provide for the transfer of cases pending
in that court, and of its judgement and
decrees, to the proper courts of the
United States. (U. S. Reports, Wallace,
Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL
COURTS IN LOUISIANA WERE
VALIDATED BY CONSTITUTIONAL
PROVISION
During the civil war in 1861, the prevailing rebel
forces established their own government in
Louisiana.
When the rebel forces were overpowered by the
Union Forces and the de facto government was
replaced by the de jure government, to give
effect to the judgments and other judicial acts of
the rebel government, from January 26, 1861,
up to the date of the adoption of the State
Constitution, a provision to said effect was
inserted in said document.
Section 149 of the Louisiana Constitution reads
as follows:
All the rights, actions, prosecutions,
claims, contracts, and all laws in force at
the time of the adoption of this
Constitution, and not inconsistent
therewith, shall continue as if it had not
been adopted; all judgments and judicial
sales, marriages, and executed
contracts made in good faith and in
accordance with existing laws in this
State rendered, made, or entered into,
between the 26th day of January, 1861,
and the date when this constitution shall
be adopted, are hereby declared to be
valid, etc. (U. S. Report, Wallace, Vol.
22, Mechanics' etc. Bank vs. Union
Bank, 281.)
EVEN AMONG SISTERS STATES OF
THE UNITED STATES JUDGEMENTS
ARE NOT EXECUTORY
The member states of the United States of
America belong to the same nation, to the
country, and are under the same sovereignty.
But judgements rendered in one state are not
executory in other states.
406 | PART 1 C O N S T I 1 FULLTEXT
To give them effect in other states it is
necessary to initiate an original judicial
proceedings, and therein the defendants in the
domestic suit may plead bar the sister state
judgement puis darrien continuance. (Wharton,
on the Conflict of Laws, Vol. II, p. 1411.)
Under the Constitution of the United
States, when a judgement of one state
in the Union is offered in a court of a
sister state as the basis of a suit nil
debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p.
1413.).
It is competent for the defendant,
however, to an action on a judgement of
a sister state, as to an action on a
foreign judgement, to set up as a
defense, want of jurisdiction of the court
rendering the judgement; and, as
indicating such want of jurisdiction, to
aver by plea that the defendant was not
an inhabitant of the state rendering the
judgement, and had not been served
with process, and did not enter his
appearance; or that the attorney was
without authority to appear. (Id., pp.
1414-1415.)
The inevitable consequence is that the courts of
the Commonwealth of the Philippines, in the
absence of an enabling act or of an express
legislative grant, have no jurisdiction to take
cognizance and continue the judicial processes,
procedures, and proceedings of the tribunals
which were created by the Japanese Military
Administration and functioned under the Vargas
Philippine Executive Commission of the Laurel
Republic of the Philippines, deriving their
authority from the Emperor, the absolute ruler of
Japan, the invading enemy, and not from the
Filipino people in whom, according to the
Constitution, sovereignty resides, and from
whom all powers of government emanate.
The position of Honorable Asenio P. Dizon, the
respondent judge of the Court of the First
Instance of Manila in declaring himself without
jurisdiction nor authority to continue the
proceedings which provoked the present
controversy, being a judicial process of a
Japanese sponsored government, is absolutely
correct, under the legal doctrines established by
the United States and the Philippine
Government, and consistently, invariably, and
without exception, followed by the same.
If we accept, for the sake of argument, the false
hypothesis that the Commonwealth tribunals
have jurisdiction to continue the judicial
processes left pending by the courts of the
governments established under the Japanese
regime, the courts which disappeared and,
automatically, ceased to function with the ouster
of the enemy, the position of the Judge Dizon, in
declining to continue the case, is still
unassailable, because, for all legal purposes, it
is the same as if the judicial processes in said
case were not taken at all, as inevitable result of
the sweeping and absolute annulment declared
by the General MacArthur in the October
Proclamation.
In said proclamation it is declared in
unmistakable and definite terms that "ALL
PROCESSES" of the Japanese sponsored
governments "ARE NULL AND VOID AND
WITHOUT LEGAL EFFECT", and they shall
remain so until the Commonwealth, through its
legislative power, decides otherwise in a proper
validating act.
The fact that the Japanese invaders, under
international law, were in duty bound to establish
courts of justice during the occupation, although
they made them completely powerless to
safeguard the constitutional rights of the citizens,
and mere figureheads as regards the
fundamental liberties of the helpless men,
women and children of our people, so much so
that said courts could not offer even the
semblance of protection when the life, the
liberty, the honor and dignity of our individual
citizens were wantonly trampled by any
Japanese, military or civilian, does not change
the situation. "ALL PROCESSES" of said court
are declared "NULL AND VOID AND WITHOUT
LEGAL EFFECT" in the October proclamation,
and we do not have any other alternative but to
accept the law, as said proclamation has the full
force of a law.
The fact that in the past, the legitimate
governments, once restored in their own
territory, condescended in many cases to
recognize and to give effect to judgments
rendered by courts under the governments set
up by an invading military occupant or by a rebel
army, does not elevate such condescension to
the category of a principle, when Wheaton
declares that no international wrong is done if
the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to
the duties imposed by the international law on
military occupants, but no authority has been
cited to the effect that the representative of the
restored legitimate government is a bound to
recognize and accept as valid the acts and
processes of said occupants. On the contrary,
407 | PART 1 C O N S T I 1 FULLTEXT
Wheaton says that if the occupant's acts are
reversed "no international wrong would be
committed."
Following the authority of Wheaton, undisputed
by the majority, General MacArthur thought, as
the wisest course, of declaring "NULL AND
VOID AND WITHOUT EFFECT," by official
proclamation, "ALL PROCESSES" under the
Japanese regime, that is legislative, executive
and judicial processes, which fall under the
absolute adjective "ALL".
That declaration is a law. It is a law that
everybody bound to accept and respect, as all
laws must be accepted and respected. It is a law
that the tribunals are duty bound to give effect
and apply.
We are not unmindful of the adverse
consequences to some individuals of the
annullment of all the judicial processes under the
Japanese regime, as provided in the October
Proclamation, but the tribunals are not guardians
of the legislative authorities, either an army
commander in chief, during war, or a normal
legislature, in peace time. The tribunals are not
called upon to guide the legislative authorities to
the wisdom of the laws to be enacted. That is
the legislative responsibility. Our duty and our
responsibility is to see to it that the law, once
enacted, be applied and complied with.
No matter the consequences, no matter who
might be adversely affected, a judge must have
the firm resolve and the courage to do his duty,
as, in the present case, Judge Dizon did, without
fear nor favor. We cannot see any reason why
we should not uphold him in his stand in
upholding the law.
It is our official duty, national and international
duty. Yes. Because this Supreme Court is
sitting, not only as a national court, but as an
international court, as is correctly stated in the
concurring opinion of Justice De Joya, and we
should feel the full weight of the corresponding
responsibility, as the American courts with
admiralty jurisdiction and the Prize Courts of
England did feel. In fact, it is in the judiciary
where, more than in any point of view is more
pressing, more imperative, more unavoidable.
Justice has no country. It is of all countries. The
horizon of justice cannot be limited by the scene
where our tribunals are functioning and moving.
That horizon is boundless. That is why in our
constitution the bill of rights has been written not
for Filipinos, but for all persons. They are rights
that belong to men, not as Filipinos, Americans,
Russians, Chinese or Malayan, but as a
members of humanity. The international
character of our duty to administer justice has
become more specific by the membership of our
country in the United Nations. And let us not
forget, as an elemental thing, that our primary
duty is to uphold and apply the law, as it is; that
we must not replace the words of the law with
what we might be inclined to surmise; that what
is clearly and definitely provided should not be
substituted with conjectures and suppositions;
that we should not try to deduce a contrary
intention to that which is unequivocally stated in
the law; that we should not hold valid what is
conclusively declared null and void.
The October Proclamation declared "ALL
PROCESSES" under the Japanese regime
"AND VOID WITHOUT EFFECT", so they must
stand. There is no possible way of evasion. "ALL
PROCESSES", in view of the meaning of the
absolute adjective "ALL", include "JUDICIAL
PROCESSES". Allegatio contra factum non est
admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal
authority to issue the October Proclamation, and
that no principle of the international law is
violated by said proclamation, no international
wrong being committed by the reversal by the
legitimate government of the acts of the military
invader.
2. That said proclamation was issued in full
conformity with the official policies to which the
United States and Philippine Governments were
committed, and the annulment of all the facts of
the governments under the Japanese regime,
legislative, executive, and judicial, is legal, and
justified by the wrongs committed by the
Japanese.
3. That when General MacArthur proclaimed and
declared in the October Proclamation "That all
laws, regulations and processes" of the
Japanese sponsored governments, during
enemy occupation, "are null and void and
without effect", he meant exactly what he said.
4. That where General MacArthur said "all
processes" we must read and understand
precisely and exactly "all processes", and not
"some processes". "All" and "some" have
408 | PART 1 C O N S T I 1 FULLTEXT
incompatible meanings and are not
interchangeable.
5. That the word "processes" includes judicial
procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all
judicial processes.".
6. That we have no right to attribute General
MacArthur an intention different from what he
has plainly, clearly, unmistakably expressed in
unambiguous words with familiar meaning
generally understood by the common man.
7. That the judicial proceedings here in question
are included among those adversely affected by
the October Proclamation.
8. That the Commonwealth tribunals have no
jurisdiction to take cognizance of nor to continue
the judicial proceedings under the Japanese
regime.
9. That to exercise said jurisdiction an enabling
act of the Congress is necessary.
10. That respondent Judge Dizon did not commit
the error complained of in the petition, and that
the petition has no merits at all.
We refuse to follow the course of action taken by
the majority in the present case. It is a course
based on a mistaken conception of the principles
of international law and their interpretation and
application, and on a pinchbeck. It is a course
based on misconstruction or misunderstanding
of the October Proclamation, in utter disregard of
the most elemental principles of legal here
meneutics. It is a course that leads to nowhere,
except to the brink of disaster, because it is
following the dangerous path of ignoring or
disobeying the law.
Let us not allow ourselves to be deceived. The
issue confronting us is not of passing
importance. It is an issue of awesome
magnitude and transcendency. It goes to and
reaches the very bottom. It is simple. Lacking in
complexities. But it may shake the very
foundation of society, the cornerstone of the
state, the primary pillar of the nation. It may dry
the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The
issue is between the validity of one or more
Japanese regime processes and the sanctity of
the law.
That is the question, reduced to its ultimate
terms. it is a simple dilemma that is facing us. It
is the alpha and the omega of the whole issue.
Either the processes, or the law. We have to
select between two, which to uphold. It is a
dilemma that does not admit of middle terms, or
of middle ways where we can loiter with happy
unconcern . We are in the cross road: which way
shall we follow? The processes and the law are
placed in the opposite ends of the balance. Shall
we inclined the balance of justice to uphold the
processes and defeat law, or vice versa?
We feel jittery because some judicial processes
might be rescinded or annulled, but we do not
tremble with sincere alarm at the thought of
putting the law under the axe, of sentencing law
to be executed by the guillotine. We feel uneasy,
fancying chaos and paralyzation of social life,
because some litigants in cases during the
Japanese regime will be affected in their private
interests, with the annulment of some judicial
processes, but we adopt an attitude of complete
nonchalance in throwing law overboard. This
baffling attitude is a judicial puzzle that nobody
will understand. So it is better that we should
shift to a more understandable way, that which is
conformable to the standard that the world
expects in judicial action.
No amount of arguments and lucubration's, no
amount of speculative gymnastics, no amount of
juggling of immaterial principles of international
law, no amount of presumptions and
suppositions, surmises and conjectures, no
amount of dexterity in juridical exegesis can
divert our attention from the real, simple,
looming, hypostasis of the issue before us: Law.
It is Law with all its majestic grandeur which we
are defying and intending to overthrow from the
sacred pedestal where the ages had placed her
as a goddess, to be enshrined, obeyed, and
venerated by men, forever. Let us not dare to lay
our profaning hands on her vestal virginity, lest
the oracle should fling at us the thunder of his
prophetic anathema.
We cannot therefore vote except for the denial of
the petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and,
pursuant to the Constitution, proceed to state the
reason for my dissent.
The proceeding involved in the case at bar were
commenced by a complaint filed by the instant
petitioner, as plaintiff, on November 18, 1944, in
409 | PART 1 C O N S T I 1 FULLTEXT
civil case No. 3012 of the so-called Court of First
Instance of Manila, the complaint bearing this
heading and title: "The Republic of the
Philippines — In the Court of First Instance of
Manila" (Annex X of Exhibit A of petition
for mandamus). The farthest that said
proceedings had gone before the record was
burned or destroyed during the battle for Manila,
was the filing by counsel for plaintiff therein of
their opposition to a motion for dismissal filed by
opposing counsel.
It is, therefore, plain that the case had not been
heard on the merits when the record was burned
or destroyed.
The respondent judge, in his order dated June 6,
1945, disposing of the petition dated May 25,
1945 filed by petitioner, as a plaintiff in said
case, and of the petition filed by respondent
Eusebio Valdez Tan Keh, as defendant therein,
on May 31, 19045, held: " first, that by virtue of
the proclamation of General MacArthur quoted
above, all laws, regulations and processes of
any other government in the Philippines than
that of the Commonwealth became null and void
and without legal effect in Manila on February 3,
1945 or, at the lates, on February 27 of the
same year; second that the proceedings and
processes had in the present case having been
before a court of the Republic of the Philippines
and in accordance with the laws and regulations
of said Republic, the same are now void and
without legal effect; third, that this Court as one
of the different courts of general jurisdiction of
the Commonwealth of the Philippines, has no
authority to take cognizance of and continue
said proceedings to final judgement, until and
unless the Government of the Commonwealth of
the Philippines, in the manner and form provided
by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct
Republic of the Philippines, and the causes
commenced and left pending therein, to the
courts created and organized by virtue of the
provisions of Act No. 4007, as revived by
Executive Order No. 36, or for the validation of
all proceedings had in said courts."
Petitioner prays that this Court declare that the
respondent judge should not have ordered the
suspension of the proceedings in civil case No.
3012 and should continue and dispose of all the
incidents in said case till its complete
termination. In my opinion, the petition should
denied.
In stating the reasons for this dissent, we may
divide the arguments under the following
propositions:
1. The proceedings in said civil case No. 3012
are null and void under General of the Army
MacArthur's proclamation of October 23, 1944
(41 Off. Gaz., 147, 148);
2. (a) The government styled as, first, the
"Philippine Executive Commission "and later as
the Republic of the Philippines", established
here by the Commander in Chief of the Imperial
Japanese Forces or by his order was not a de-
facto government — the so-called Court of First
Instance of Manila was not a de facto court, and
the judge who presided it was not a de
facto judge; (b) the rules of International Law
regarding the establishment of a de
factoGovernment in territory belonging to a
belligerent but occupied or controlled by an
opposing belligerent are inapplicable to the
governments thus established here by Japan;
3. The courts of those governments were
entirely different from our Commonwealth courts
before and after the Japanese occupation;
4. The question boils down to whether the
Commonwealth Government, as now restored,
is to be bound by the acts of either or both of
those Japanese-sponsored governments;
5. Even consideration of policy of practical
convenience militate against petitioner's
contention.
I
The proceedings in said civil case No.
3012 are null and void under General of
the Army MacArthur's proclamation of
October 23, 1944 (41 Off. Gaz., 147,
148).
In this proclamation, after reciting certain now
historic facts, among which was that the so-
called government styled as the "Republic of the
Philippines" was established on October 14,
1943 "under enemy duress, . . . based upon
neither the free expression of the people's will
nor the sanction of the Government of the United
States," the great Commander-in-Chief
proclaimed and declared:
xxx xxx xxx
3. That all laws, regulations and
processes of any other government in
the Philippines than that of the said
Commonwealth are null and void and
without legal effect in areas of the
410 | PART 1 C O N S T I 1 FULLTEXT
 Philippines free of enemy occupation
and control; and
xxx xxx xxx
I do enjoin upon all loyal citizens of the
Philippines full respect for and
obedience to the Constitution of the
Commonwealth of the Philippines and
the laws, regulations and other acts of
their duly constituted government whose
seat is now firmly re-established on
Philippine soil.
The evident meaning and effect of the 3rd
paragraph above quoted is, I think, that as the
different areas of the Philippines were
progressively liberated, the declaration of nullity
therein contained shall attach to the laws,
regulations and processes thus condemned in
so far as said areas were concerned. Mark that
the proclamation did not provide that such laws,
regulations and processes shall be or are
annulled, but that they are null and void.
Annulment implies some degree of the
effectiveness in the act annulled previous to the
annulment, but a declaration of nullity denotes
that the act is null and void ab initio — the nullity
precedes the declaration. The proclamation
speaks in the present tense, not in the future. If
so, the fact that the declaration of nullity as to
the condemned laws, regulations, and
processes in areas not yet free from enemy
occupation and control upon the date of the
proclamation, would attach thereto at a later
date, is no argument for giving them validity or
effectiveness in the interregnum. By the very
terms of the proclamation itself, that nullity had
to date back from the inception of such laws,
regulations and processes; and to dispel any
shadow of doubt which may still remain, we
need only consider the concluding paragraph of
the proclamation wherein the Commander in
Chief of the army liberation solemnly enjoined
upon all loyal citizens of the Philippines full
respect for and obedience to the Constitution of
the Commonwealth of the Philippines and the
laws, regulations and other acts of their duly
constituted government. This is all-inclusive — it
comprises not only the loyal citizens in the
liberated areas but also those in areas still under
enemy occupation and control. It will be noticed
that the complaint in said civil case No. 3012
was filed twenty-six days after the above-quoted
proclamations of General of the Army
MacArthur. If the parties to said case were to
consider the proceedings therein up to the date
of the liberation of Manila valid and binding, they
would hardly be complying with the severe
injunction to render full respect for and
obedience to our Constitution and the laws,
regulations and other acts of our duly constituted
government from October 23, 1944, onwards.
Indeed, to my mind, in choosing between these
two courses of action, they would be
dangerously standing on the dividing line
between loyalty and disloyalty to this country
and its government.
The proceeding in question, having been had
before the liberation of Manila, were
unquestionably "processes" of the Japanese-
sponsored government in the Philippines within
the meaning of the aforesaid proclamation of
General of the Army MacArthur and,
consequently, fall within the condemnation of the
proclamation. Being processes of a branch of a
government which had been established in the
hostility to the Commonwealth Government, as
well as the United States Government, they
could not very well be considered by the parties
to be valid and binding, at least after October 23,
1944, without said parties incurring in
disobedience and contempt of the proclamation
which enjoins them to render full respect for the
obedience to our Constitution and the laws,
regulations and other acts of our duly constituted
government. Nine days after the inauguration of
the so-called "Republic of the Philippines,"
President Franklin Delano Roosevelt of the
United States declared in one of his most
memorable pronouncements about the activities
of the enemy in the Philippines, as follows:
One of the fourtheenth of this month, a
puppet government was set up in the
Philippine Island with Jose P. Laurel,
formerly a justice of the Philippine
Supreme Court, as "president." Jorge
Vargas, formerly as a member of the
Commonwealth Cabinet, and Benigno
Aquino, also formerly a member of that
cabinet, were closely associated with
Laurel in this movement. The first act of
the new puppet regime was to sign a
military alliance with Japan. The second
act was a hyphocritical appeal for
American sympathy which was made in
fraud and deceit, and was designed to
confuse and mislead the Filipino people.
I wish to make it clear that neither the
former collaborationist "Philippine
Executive Commission" nor the present
"Philippine Republic " has the
recognition or sympathy of the
Government of the United States. . . .
Our symphaty goes out to those who
remain loyal to the United States and
the Commonwealth — that great
majority of the Filipino people who have
411 | PART 1 C O N S T I 1 FULLTEXT
 not been deceived by the promises of
the enemy.
October 23, 1943.
FRANK
LIN
DELAN
O maintained by the British in Casetine, from
ROOSE
VELT
Preside
nt of the
United
States
(Form U.S. Naval War College
International Law Documents, 1943, pp.
93, 94.).
It is a fact of contemporary history that while
President Manuel L. Quezon of the Philippines
was in Washington, D.C., with his exiled
government, he also repeatedly condemned
both the "Philippine Executive Commission" and
the "Philippine Republic," as they had been
established by or under orders of the
Commander in Chief of the Imperial Japanese
Forces. With these two heads of the
Governments of the United States and the
Commonwealth of the Philippines condemning
the "puppet regime" from its very inception, it is
beyond my comprehension to see how the
proceedings in question could be considered
valid and binding without adopting an attitude
incompatible with theirs. As President Roosevelt
said in his above quoted message, "Our
symphaty goes out to those remain loyal to the
United States and the Commonwealth — that
great majority of the Filipino people who have
not been deceived by the promises of the
enemy.
The most that I can concede is that while the
Japanese Army of occupation was in control in
the Islands and their paramount military strength
gave those of our people who were within their
reach no other alternative, these had to obey
their orders and decrees, but the only reason for
such obedience would be that paramount
military strength and not any intrinsic legal
validity in the enemy's orders and decrees. And
once that paramount military strength
disappeared, the reason for the obedience
vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the
United States in the case of Williams vs. Bruffy
(96 U.S., 176; 24 Law. ed., 719), "In the face of
an overwhelming force, obedience in such
matters may often be a necessity and, in the
interest of order, a duty. No concession is thus
made to the rightfulness of the authority
exercised." (Emphasis ours.) The court there
refers to its own former decision in
Thorington vs. Smith, and makes it clear that the
doctrine in the Thorington case, so far as the
effects of the acts of the provisional government
September, 1814 to the Treaty of Peace in 1815,
and the consideration of Tampico as United
States territory, were concerned, was limited to
the period during which the British, in the first
case, retained possession of Castine, and the
United States, in the second, retained
possession of Tampico. In referring to the
Confederate Government during the Civil War,
as mentioned in the Thorington case, the court
again says in effect that the actual supremacy of
the Confederate Government over a portion of
the territory of the Union was the only reason for
holding that its inhabitants could not but obey its
authority. But the court was careful to limit this to
the time when that actual supremacy existed,
when it said: . . . individual resistance to its
authority then would have been futile and,
therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote
the following paragraph from that leading
decision:
There is nothing in the language used in
Thorington vs. Smith (supra), which
conflicts with these views. In that case,
the Confederate Government is
characterized as one of paramount
force, and classed among the
governments of which the one
maintained by great Britain in Castine,
from September 1814, to the Treaty of
Peace in 1815, and the one maintained
by the United States in Tampico, during
our War with Mexico, are examples.
Whilst the British retained possession of
Castine, the inhabitants were held to be
subject to such laws as the British
Government chose to recognize and
impose. Whilst the United
States retained possession of Tampico,
it was held that it must regarded and
respected as their territory. The
Confederate Government, the court
observed, differed from these temporary
governments in the circumstance that its
authority did not justifying acts of
hostility to the United States, "Made
obedience to its authority in civil and
local matters not only a necessity, but a
duty." All that was meant by this
language was, that as the actual
412 | PART 1 C O N S T I 1 FULLTEXT
 supremancy of the Confederate
Government existed over certain
territory, individual resistance to its
authority then would have been futile
and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in
such matters may often be a necessity
and, in the interest of order, a duty. No
concession is thus made to the
rightfulness of the authority exercised.
(Williams vs. Bruffy, 24 Law ed., 719;
emphasis ours.)
The majority opinion, in considering valid the
proceedings in question, invokes the rule that
when a belligerent army occupies a territory
belonging to the enemy, the former through its
Commander in Chief, has the power to establish
thereon what the decisions and treaties have
variously denominated provisional or military
government, and the majority holds that the
Japanese-sponsored government in the
Philippines was such a government. Without
prejudice to later discussing the effects which
the renunciation of war as an instrument of
national policy contained in our Commonwealth
Constitution, as well as in the Briand-Kellog
Pact, must have produced in this rule in so far as
the Philippines is concerned, let us set forth
some considerations apropos of this conclusion
of the majority. If the power to establish here
such a provisional government is recognized in
the Commander in Chief of the invasion army,
why should we not recognize at least an equal
power in the Commander in Chief of the
liberation army to overthrow that government will
all of its acts, at least of those of an executory
nature upon the time of liberation? Considering
the theory maintained by the majority, it would
seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the
Commonwealth Government, and all of its acts
and institutions if he had choosen to. Why
should at least an equal power be denied the
Commander in Chief of the United States Army
to overthrow the substitute government thus
erected by the enemy with all of its acts and
institutions which are still not beyond retrieve?
Hereafter we shall have occasion to discuss the
aspects of this question from the point of view of
policy or the practical convenience of the
inhabitants. If the Japanese Commander in
Chief represented sovereignty of Japan, the
American Commander in Chief represented the
sovereignty of the United States, as well as the
Government of the Commonwealth. If Japan had
won this war, her paramount military supremacy
would have continued to be exerted upon the
Filipino people, and out of sheer physical
compulsion this country would have had to bow
to the continuance of the puppet regime that she
had set up here for an indefinite time. In such a
case, we admit that, not because the acts of that
government would then have intrinsically been
legal and valid, but simply because of the
paramount military force to which our people
would then have continued to be subjected, they
would have had to recognize as binding and
obligatory the acts of the different departments
of that government. But fortunately for the
Filipinos and for the entire civilized world, Japan
was defeated. And I now ask: Now that Japan
has been defeated, why should the Filipinos be
still bound to respect or recognize validity in the
acts of the Japanese-sponsored government
which has been so severely condemned by both
the heads of the United States and our
Commonwealth Government throughout the
duration of the war? If we were to draw a parallel
between that government and that which was
established by the Confederate States during
the American Civil War, we will find that both
met with ultimate failure. And, in my opinion, the
conclusion to be drawn should be the same in
both cases.
As held by the United States Supreme Court in
Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with
it the dissipation of its pretentions and the
breaking down in pieces of the whole fabric of its
government. The Court said among other things:
The immense power exercised by the
government of the Confederate States
for nearly four years, the territory over
which it extended, the vast resources it
wielded, and the millions who
acknowledged its authority, present an
imposing spectacle well fitted to mislead
the mind in considering the legal
character of that organization. It claimed
to represent an independent nation and
to posses sovereign powers; as such to
displace to jurisdiction and authority of
the United States from nearly half of
their territory and, instead of their laws,
to substitute and enforce those of its
own enactment. Its pretentions being
resisted, they were submitted to the
arbitrament of war. In that contest the
Confederacy failed; and in its failure its
pretentions were dissipated, its armies
scattered, and the whole fabric of its
government broken in pieces. (24 Law,
ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and
occupation of the Philippines had been lawful —
which, however, is not the case — and if Japan
had succeeded in permanently maintaining the
government that she established in the
413 | PART 1 C O N S T I 1 FULLTEXT
Philippines, which would have been the case
had victory been hers, there would be more
reason for holding the acts of that government
valid, but because Japan has lost the war and,
therefore, failed in giving permanence to that
government, the contrary conclusion should
legitimately follow.
The validity of legislation exercised by either
contestant "depends not upon the existence of
hostilities but upon the ultimate success of the
party which it is adopted" (emphasis ours). And,
referring to the overthrow of the of the
Confederacy, the Court, said, "when its military
forces were overthrown, it utterly perished, and
with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a
passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter
dictum. The majority opinion says that in this
passage the Court was "discussing the validity
of the acts of the Confederate States." In the first
place, an examination of the decision will reveal
that the controversy dealt with an act of
the Confederate Government, not of the
Confederate States individually; and in the
second place, the quoted passage refers to
something which was not in issue in the case,
namely, the acts of the individual States
composing the Confederacy. But even this
passage clearly places the case at bar apart
from the Court's pronouncement therein. The
quoted passage commences by stating that
"The same general form of government the
same general laws for the administration of
justice and the protection of private rights, which
has existed in the States prior to the rebellion,
remanded during (its) continuance and
afterwards. "In the case at bar, the same general
form of the Commonwealth Government did not
continue under the Japanese, for the simple
reason that one of the first acts of the invaders
was to overthrow the Commonwealth
Constitution and, therefore, the constitutional
government which existed thereunder, as an
effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese
Forces:
1. Order No. 3, dated February 20, 1942 of the
Commander in Chief of the Imperial Japanese
Forces to the Chairman of the Philippine
Executive Commission directed that, in the
exercise of legislative, executive and judicial
powers in the Philippines, the "activities" of the
"administrative organs and judicial courts in the
Philippines shall be based upon the existing
status, order, ordinances and the
Commonwealth Constitution (1 Official Journal
of the Japanese Military Administration, page
34). Under the frame of government existing in
this Commonwealth upon the date of the
Japanese invasion, the Constitution was the
very fountain-head of the validity and effects of
all the "status, orders, and ordinances"
mentioned by the Japanese Commander in
Chief, and in overthrowing the Constitution he, in
effect, overthrew all of them.
2. Instruction No. 6 of the Japanese Military
Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive
Commission) gave the "Detailed Instruction
Based on Guiding Principle of the
Administration," and among other things
required "The entire personnel shall be required
to pledge their loyalty to the Imperial Japanese
Forces. . . ." (This, of course, was repugnant to
the frame of government existing here under the
Commonwealth Constitution upon the date of
invasion.)
3. Proclamation dated January 3, 19452 of the
Japanese Commander in Chief provided in
paragraph 3 that "The Authorities and the
People of the Commonwealth should sever their
relations with the U.S. o . . ." (This is, likewise,
repugnant to the Commonwealth Constitution
and the to the Government of that
Commonwealth Constitution and to the
Government of that Commonwealth which was
expressly made subject to the supreme
sovereignty of the United States until complete
independence is granted, not by the mere will of
the United States, but by virtue of an agreement
between that Government and ours, under the
Tydings-McDuffie Act.)
The individual States of the Confederate and
their governments existed prior to the Civil War
and had received the sanction and recognition of
the Union Government, for which the Federal
Supreme Court was speaking in the Williams-
Bruffy case; while the Japanese-sponsored
governments of the "Philippine Executive
Commission" and the Republic of the
Philippines" neither existed here before the war
nor had received the recognition or sanction of
either the United States or the Commonwealth
Government — nay, they had received the most
vigorous condemnation of both.
The Court further says in Williams vs. Bruffy
(supra):
No case has been cited in argument,
and we think unsuccesfully attempting to
establish a separate revolutionary
government have been sustained as a
matter of legal right. As justly observed
414 | PART 1 C O N S T I 1 FULLTEXT
 by the late Chief Justice in the case of
Shortridge vs. Macon, I Abb. U.S., 58,
decided at the circuit, and, in all material
respects like the one at bar, "Those who
engage in rebellion must consider the
consequences. If they succeed,
rebellion becomes revolution, and the
new government will justify is founders.
If they fail, all their acts hostile to the
rightful government are violations of law,
and originate no rights which can be
recognized by the courts of the nation
whose authority and existence have
been alike assailed. S.C., Chase, Dec.,
136. (Williams vs. Bruffy, 96 U.S., 176;
24 Law. ed., 716, 718.) (Emphasis
ours.)
I am of opinion that the principles thus
enunciated for the case of an unsuccessful
rebellion should be applied with greater force to
the case of a belligerent who loss the war. And
since the founding of the Japanese-sponsored
government in the Philippines was designed to
supplant and did actually supplant the rightful
government and since all its acts could not but a
hostile to the latter (however blameless the
officials who acted under enemy duress might
be), and since Japan failed, all said acts,
particularly those of the Japanese-sponsored
court in said civil case No. 3012, "are violations
of law, and originate no rights which can be
recognized by the courts of the nation whose
authority and existence have been alike
assailed", quoting the language of the court in
Shortridge vs. Macon, cited by Mr. Justice Field
in Williams vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the
"Philippine Executive Commission" and
later as the Republic of the Philippines",
established here by the Commander in
Chief of the Imperial Japanese Forces
or by the his order was not a de
facto government--the so-called Court of
First Instance of Manila was not a de
facto court and the who presided it was
not a de facto judge;
(b) The rules of International Law
regarding the establishment of a de
facto government in territory belonging
to a belligerent but occupied or
controlled by an opposing belligerent are
inapplicable to the governments thus
established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra,
and the pertinent cases therein cited, the short-
lived provisional government thus established by
the Japanese in the Philippines should be
classified, at best, as a government of
paramount force. But this is not all. The
Constitution of this Commonwealth which has
been expressly approved by the United States
Government, in Article II, section 3, under the
heading "Declaration of Principles", renounces
war as an instrument of national policy. This
renunciation of war as an instruments of national
policy follows an equal renunciation in the
Briand-Kellog Pact. The rules of International
Law , cited in support of the power or right of a
belligerent army of occupation to set up a
provisional government on occupied enemy
territory, were evolved prior to the first World
War, but the horrors and devastations of that
war convinced, at least the governments of the
United States and France, that they should
thereafter renounce war as an instrument of
national policy, and they consequently
subscribed the Briand-Kellog Pact. Those
horrors and devastations were increased a
hundred fold, if not more, in this second World
War, but even before this war occurred, our own
people, through our Constitutional delegates,
who framed the Commonwealth Constitution
also adopted the same doctrine, and embodied
an express renunciation of war as an instrument
of national policy in the instrument that they
drafted. It is true that in section 3, Article II,
above-cited, our Constitution adopts the
generally accepted principles of International
Law as a part of the law of the Nation. But, of
course, this adoption is exclusive of those
principles of International Law which might
involve recognition of war as an instrument of
national policy. It is plain that on the side of the
Allies, the present war is purely defensive. When
Japan started said war, treacherously and
without previous declaration, and attacked Pearl
Harbor and the Philippines on those two fateful
days of December 7 and 8, 1941, she employed
war as an instrument of the national policy.
Under the Briand-Kellog Pact and our
Commonwealth Constitution, the United States
and the Commonwealth Government could not
possibly have recognized in Japan any right, as
against them, to employ that war as an
instrument of her national policy, and,
consequently, they could not have recognized in
Japan power to set up in the Philippines the
puppet government that she later set up,
because such power would be a mere incident
or consequence of the war itself. The authorities
agree that such a power, under the cited rules, is
said to a right derived from war. (67 C.J., p. 421,
sec. 171.) There can be no question that the
United States and the Commonwealth
415 | PART 1 C O N S T I 1 FULLTEXT
Governments were free to refuse to be bound by
those rules when they made their respective
renunciations above referred to. Indeed, all the
United Nations have exercised this free right in
their Charter recently signed at San Francisco.
As necessary consequence of this, those rules
of International Law were no longer applicable to
the Philippines and to the United States at the
time of the Japanese invasion as a corollary, it
follows that we have no legal foundation on
which to base the proposition that the acts of
that Japanese-sponsored government in the
Philippines were valid and binding. Moreover, I
am of opinion, that although at the time of the
Japanese invasion and up to the present, the
United States retains over the Philippines, a
certain measure of sovereignty, it is only for
certain specified purposes enumerated in the
Tydings-McDufie Act of the Commonwealth
Constitution. (Ordinance appended to the
Constitution.) And our territory was at the time of
the Japanese invasion not a territory of the
United States, within the meaning of the laws of
war governing war-like operations on enemy
territory. Our territory is significantly called "The
National Territory" in Article I of our Constitution
and this bears the stamps of express approval of
the United States Government. The Philippines
has been recognized and admitted as a member
of the United Nations. We, therefore, had our
own national and territorial identity previous to
that invasion. Our nation was not at war with the
Filipinos. And line with this, the Japanese army,
in time, released Filipino war prisoners captured
in Bataan. Lt. Gen. Maeda, Chief of Staff,
Imperial Japanese Forces, in his speech of
January 2, 1942, said:
. . . we had not the slighest intensions to
make your people our enemy; rather we
considered them as our friends who will
join us has hand-in-hand in the
establishment of an orderly Greater East
Asia. . . ., (Official Gazette, edited at the
Office of the Executive Commission,
Vol. I, p. 55.)
If the Philippines was a neutral territory when
invaded by the Japanese, the following
principles from Lawrence, International Law (7th
ed.), p. 603, are pertinent:
The Duties of Belligerent States
Towards Neutral States. — . . . To
refrain from carrying on hostilities within
neutral territory. — We have already
seen that, though this obligation was
recognized in theory during the infancy
of International law, it was often very
imperfectly observed in practice. But in
modern times it has been strickly
enforced, and any State which
knowingly ordered warlike operations to
be carried on in neutral territory . . .
would bring down upon itself the
reprobation of civilized mankind.
Hostilities may be carried on in the
territory of either belligerent, on the high
seas, and in territory belonging to no
one. Neutral land and neutral territorial
waters are sacred. No acts of warfare
may lawfully take place within them. . . .
(Emphasis ours.)
In all the cases and authorities supporting the
power or right to set up a provisional
government, the belligerent had the right to
invade or occupy the territory in the first
instance. Such was not the case with the
Philippines. President Roosevelt, in his message
to the Filipino people, soon after the landing of
American Forces in Leyte, on October 20, 1944,
characterized Japan's invasion and occupation
of the Philippines as "the barbarous, unprovoked
and treacherous attack upon the Philippines,"
and he announced the American people's "firm
determination to punish the guilty." (41 Off. Gaz.,
149.) (Emphasis ours.) The illustrious leader of
the United Nations could not have in more
unmistakable terms the utter illegality of that
invasion and occupation. If the establishment of
a provinsional government in occupied territory
by a belligerent is "a mere application or
extension of the force by which the invasion or
occupation was effected" (67 C.J., p. 421, sec
171), the illegality of the invasion, would
necessarily permeate the government, which
was its mere application or extention.
The fact that shortly before December 8, 1941,
the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost
untrained forces of the Philippine Army had been
inducted into the American Army, did not change
the neutral status of the Philippines. That military
measure had been adopted for purely defensive
purposes. Nothing could be farther from the
minds of the government and military leaders of
the United States and the Philippines in adopting
it than to embark upon any aggressive or warlike
enterprise against any other nation. It is an old
and honored rule dating as far back as the 18th
century that even solemn promises of assistance
made before the war by a neutral to a nation
which later becomes a belligerent, would not
change the status of the neutral even if such
promises were carried out, so long as they were
made for purely defensive purposes. In the
words of Vattel "when a sovereign furnishes the
succor due in virtue of a former defensive
alliance, he does not associate himself in the
416 | PART 1 C O N S T I 1 FULLTEXT
war. Therefore he may fulfill his engagements
and yet preserve an exact neutrality."
(Lawrence, Principles of International Law [7th
ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice
and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without
resistance, such invasion occupation would
undoubtedly have been considered in violation
of International Law. Should the Filipinos be
punished for having had the patriotism, bravery,
and heroism to fight in defense of the
sacredness of their land, the sanctity of their
homes, and the honor and dignity of their
government by giving validity, in whatever
limited measure, to the lawless acts of the
ruthless enemy who thus overran their country,
and robbed them of the tranquility and
happiness of their daily lives? And yet, to my
mind, to give any measure of validity or binding
effect to the proceedings of the Japanese-
sponsored Court of First Instance of Manila,
involved herein, would be to give that much
validity or effect to the acts of those same
invaders. To equalize the consequences of a
lawful and a wrongful invasion of occupation,
would be to equalize right and wrong, uphold the
creed that might makes right, and adopt "the law
of the jungle."
If said Japanese-sponsored government was not
a de facto government, it would seem clearly to
follow that its "Court of First Instance of Manila"
was not a de facto court. But it should
additionally be stated that for it be a de
facto court, its judge had to be a de facto judge,
which he could not be, as presently
demonstrated.
As said by President Osmeña, in replying to the
speech of General of the Army MacArthur when
the latter turned over to him the full powers and
responsibilities of the Commonwealth
Government, on February 27, 1945:
xxx xxx xxx
The time has come when the world
should know that when our forces
surrendered in Bataan and Corregidor,
resistance to the enemy was taken up
by the people itself — resistance which
was inarticulate and disorganized in its
inception but which grew from the day to
day and from island until it broke out into
an open warfare against the enemy.
The fight against the enemy was truly a
people's war because it counted with the
wholehearted support of the masses.
From the humble peasant to the barrio
school teacher, from the volunteer guard
to the women's auxilliary service units,
from the loyal local official to the barrio
folk — each and every one of those
contributed his share in the great
crusade for liberation.
The guerrillas knew that without the
support of the civilian population, they
could not survive. Whole town and
villages dared enemy reprisal to oppose
the hated invader openly or give
assistance to the underground
movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the
General of the Army MacArthur's accurate
statement that the "Republic of the Philippines"
had been established under enemy duress, it
must be presumed — to say the least — that the
judge who presided over the proceedings in
question during the Japanese occupation, firstly,
accepted his appointment under duress; and
secondly, acted by virtue of that appointment
under the same duress. In such circumstances
he could not have acted in the bona fide belief
that the new "courts" created by or under the
orders of the Japanese Military Commander in
chief had been legally created--among them the
"Court of first Instance of Manila," — that the
Chairman of the "Philippine Executive
Commission" or the President of the "Republic of
the Philippines", whoever appointed him, and
conferred upon him a valid title to his office and
a legitimate jurisdiction to act as such judge.
Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866,
872). The very idea of enemy duress would
necessarily imply that but for the duress exerted
upon him by the enemy he would have refused
to accept the appointment and to act thereunder.
And why? Because he must be presumed to
know that the office to which he was thus
appointed had been created by the enemy in
open defiance of the Commonwealth
Constitution and the laws and regulation
promulgated by our Commonwealth
Government, and that his acceptance of said
office and his acting therein, if willfully done,
would have been no less than an open hostility
to the very sovereignty of the United Sates and
to the Commonwealth Government, and a
renunciation of his allegiance to both. There is
no middle ground here. Either the judge acted
purely under duress, in which case his acts
would be null and void; or maliciously in defiance
of said governments, in which case his acts
would be null and void for more serious reasons.
417 | PART 1 C O N S T I 1 FULLTEXT
The courts created here by the Japanese
government had to look for the source of their
supposed authority to the orders of the
Japanese Military Commander in chief and the
so-called Constitution of the "Republic of the
Philippines," which had been adopted in a
manner which would shock the conscience of
democratic peoples, and which was designed to
supplant the Constitution which had been duly
adopted by the Filipino people in a Constitutional
Convention of their duly elected Constitutional
Delegates. And it was decreed that the
Commander in chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial
courts." (Vol. 1, p. 7, Official Journal of the
Japanese Military Administration, cited on pp. 2,
3, of the order of the respondent judge
complained of and marked Exhibit H of the
petition for mandamus.) How can our present
courts legitimately recognize any efficacy in the
proceedings of such an exotic judicial system,
wherein the Commander in Chief of the Imperial
Japanese Forces possessed the highest judicial
jurisdiction?
III
The courts of those governments were
entirely different from our
Commonwealth courts before and after
the Japanese occupation.
Executive Order No. 36 of the President of the
Philippines, dated March 10, 1945, in its very
first paragraph, states the prime concern of the
government "to re-establish the courts as fast as
provinces are liberated from the Japanese
occupation." If the courts under the Japanese-
sponsored government of the "Republic of the
Philippines" were the same Commonwealth
courts that existed here under the Constitution at
the time of the Japanese invasion, President
Osmeña would not be speaking of re-
establishing those courts in his aforesaid
Executive Order. For soothe, how could those
courts under the "Republic of the Philippines" be
the courts of the Commonwealth of the
Philippines when they were not functioning
under the Constitution of the Commonwealth
and the laws enacted in pursuance of said
Constitution? The jurisdiction of the
Commonwealth courts was defined and
conferred under the Commonwealth Constitution
and the pertinent legislation enacted thereunder,
that of the Japanese-sponsored courts was
defined and conferred by the orders and decrees
of the Japanese Commander in Chief, and,
perhaps, the decrees of the "Philippine
Executive Commission" and the laws of the so-
called Legislature under the Republic, which was
not composed of the elected representatives of
the people. The Justices and Judges of the
Commonwealth courts had to be appointed by
the President of the Commonwealth with
confirmation by the Commission on
Appointments, pursuant to the Commonwealth
Constitution. The Chief Justice of the Supreme
Court, under the "Philippine Executive
Commission" was appointed by the Commander
in Chief of the Imperial Japanese Forces, and
the Associate Justices of the Supreme Court,
the Presiding Justice and Associate Justices of
the Court of Appeals, the Judges of first Instance
and of all inferior courts were appointed by the
Chairman of the Executive Commission, at first,
and later, by the President of the Republic, of
course, without confirmation by the Commission
on Appointments under the Commonwealth
Constitution. The Chief Justice and Associate
Justices of the Supreme Court, the President
and Associate Justices of the Court of Appeals,
and the Judges of First Instance and of all
inferior courts in the Commonwealth judicial
system, had to swear to support and defend the
Commonwealth Constitution, while this was
impossible under the Japanese-sponsored
government. In the Commonwealth judicial
system, if a Justice or Judge should die or
incapacitated to continue in the discharge of his
official duties, his successor was appointed by
the Commonwealth President with confirmation
by the Commission on Appointments, and said
successor had to swear to support and defend
the Commonwealth Constitution; in the exotic
judicial system implanted here by the Japanese,
if a Justice or Judge should die or incapacitated,
his successor would be appointed by the
Japanese Commander in Chief, if the dead or
incapacitated incumbent should be the Chief
Justice of the Supreme Court, or otherwise, by
the Chairman of the "Executive Commission" or
the President of the "Republic", of course
without confirmation by the Commission on
Appointments of the Commonwealth Congress,
and, of course, without the successor swearing
to support and defend the Commonwealth
Constitution.
If, as we believe having conclusively shown, the
Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is
unavoidable that any jurisdiction possessed by
the former and any cases left pending therein,
were not and could not be automatically
transfered to the Commonwealth courts which
we re-established under Executive Order No. 36.
For the purpose, a special legislation was
necessary.
Executive Order No. 37, in my humble opinion,
does not, as held by the majority, imply that the
President recognized as valid the proceedings in
418 | PART 1 C O N S T I 1 FULLTEXT
all cases appealed to the Court of Appeals.
Section 2 of that order simply provides that all
cases which have been duly appealed to the
Court of Appeals shall be transmitted to the
Supreme Court for final decision. The adverb
"duly" would indicate that the President foresaw
the possibility of appeals not having been duly
taken. All cases appealed to the Court of
Appeals before the war and the otherwise duly
appealed, would come under the phrase "duly
appealed" in this section of the Executive Order.
But considering the determined and firm attitude
of the Commonwealth Government towards
those Japanese-sponsored governments since
the beginning, it would seem inconceivable that
the President Osmeña, in section 2 of Executive
Order No. 37, intended to include therein
appeals taken to the Japanese-sponsored Court
of Appeals, or from the Japanese-sponsored
inferior courts. It should be remembered that in
the Executive Order immediately preceeding and
issued on the same date, the President speaks
of re-establishing the courts as fast as provinces
were liberated from the Japanese occupation.
IV
The question boils down to whether the
Commonwealth Government, as now
restored, is to be bound by the acts of
either or both of those Japanese-
sponsored governments.
In the last analysis, in deciding the question of
validity or nullity of the proceedings involved
herein, we are confronted with the necessity to
decide whether the Court of first Instance of
Manila and this Supreme Court, as re-
established under the Commonwealth
Constitution, and the entire Commonwealth
Government, are to be bound by the acts of the
said Japanese-sponsored court and
government. To propound this question is, to my
mind, to answer it most decidedly in the
negative, not only upon the ground of the legal
principles but also for the reasons of national
dignity and international decency. To answer the
question in the affirmative would be nothing
short for legalizing the Japanese invasion and
occupation of the Philippines. Indeed, it would
be virtual submission to the dictation of an
invader our people's just hatred of whom gave
rise to the epic Philippine resistance movement,
which has won the admiration of the entire
civilized world.
V processes in the dispute were had, in acting by
Even considerations of policy or
practical convenience militate against
petitioner's contention.
In this connection, the respondent judge, in his
order of June 6, 1945, complained of, has the
following to say:
It is contended, however, that the
judicial system implanted by the
Philippine Executive Commission and
the Republic was the same as that of
the Commonwealth prior to Japanese
occupation; that the laws administered
and enforced by said courts during the
existence of said regime were the same
laws on the statute books of
Commonwealth before Japanese
occupation, and that even the judges
who presided them were, in many
instances, the same persons who held
the position prior to the Japanese
occupation. All this may be true, but
other facts are just as stubborn and
pitiless. One of them is that said courts
were of a government alien to the
Commonwealth Government. The laws
they enforced were, true enough, laws
of the Commonwealth prior to Japanese
occupation, but they had become the
laws — and the Courts had become the
institutions-of Japan by adoption
(U.S. vs. Reiter, 27 F. Case No. 16,146),
as they became later on the laws and
institution of the Philippine Executive
Commission and the Republic of the
Philippines. No amount of argument or
legal fiction can obliterate this fact.
Besides, I am of the opinion that the validity of
the acts of the courts in the "judicial system
implanted by the Philippine Executive
Commission and the Republic "would not
depend upon the laws that they "administered
and enforced", but upon the authority by virtue of
which they acted. If the members of this Court
were to decide the instant case in strict
accordance with the Constitution and the laws of
the Commonwealth but not by the authority that
they possess in their official capacity as the
Supreme Court of the Philippines, but merely as
lawyers, their decision would surely be null and
void. And yet, I am firmly of opinion that whoever
was the "judge" of the Japanese sponsored
Court of First Instance of Manila who presided
over the said court when the proceedings and
virtue of the supposed authority which he was
supposed to have received from that
government, did so with no more legal power
than if he had acted as a mere lawyer applying
419 | PART 1 C O N S T I 1 FULLTEXT
the same laws to the case. If duplication of work
or effort, or even if confussion, should be alleged
to possibly arise from a declaration of nullity or
judicial proceedings had before those Japanese-
sponsored courts, it should suffice to answer
that the party so complaining in voluntarily
resorting to such courts should be prepared to
assume the consequences of his voluntary act.
On the other hand, his convenience should not
be allowed to visit upon the majority of the
inhabitants of this country, the dire
consequences of a sweeping and wholesale
validation of judicial proceedings in those courts.
Let us set forth a few considerations apropos of
this assertion. It is a fact of general knowledge
that during the Japanese occupation of the
Philippines, the overwhelming majority of our
people and other resident inhabitants were
literally afraid to go any place where there were
Japanese sentries, soldiers or even civilians,
and that these sentries were posted at the
entrance into cities and towns and at
government offices; that the feared Japanese
"M. P.'s" or Kempeitai's" were a constant terror
to them; and lastly, that the greater number who
lived or had evacuated to places for from the
Japanese, were found precisely in the cities and
towns where the courts were located; and as a
consequence, the great majority of the people
were very strongly adverse to traveling any
considerable distance from their homes and
were, one might say, in constant hiding. Add to
these circumstances, the fact of the practical
absence of transportation facilities and the no
less important fact of the economic structure
having been so dislocated as to have
impoverished the many in exchange for the
enrichment of the few — and we shall have a fair
picture of the practical difficulties which the
ordinary litigant would in those days have
encountered in defending his rights against
anyone of the favored few who would bring him
to court. It should be easy to realize how hard it
was for instances, to procure the attendance of
witnesses, principally because of the fact that
most of them were in hiding or, at least, afraid to
enter the cities and towns, and also because of
then generally difficult and abnormal conditions
prevailing. Under such conditions, cases or
denial of a party's day in court expected. Such
denial might arise from many a cause. It might
be party's fear to appear before the court
because in doing so, he would have had to get
near the feared Japanese. It might be because
he did not recognize any legal authority in that
court, or it might be his down-right repugnance
of the hated enemy. And I dare say that among
such people would be found more than
seventeen million Filipinos. These are but a few
of countless cause. So that if some form of
validation of such judicial proceedings were to
be attempted, all necessary safeguards should
be provided to avoid that in any particular case
the validation should violate any litigant's
constitutional right to his day in court, within the
full meaning of the phrase, or any other
constitutional or statutory right of his. More
people, I am afraid, would be prejudiced than
would be benefited by a wholesale validation of
said proceedings.
Much concern has been shown for the possible
confusion which might result from a decision
declaring null and void the acts processes of the
Japanese-sponsored governments in the
Philippines. I think, this aspect of the question
has been unduly stressed. The situation is not
without remedy, but the remedy lies with the
legislature and not with the courts. As the courts
cannot create a new or special jurisdiction for
themselves, which is a legislative function, and
as the situation demands such new or special
jurisdiction, let the legislature act in the
premises. For instance, the Congress may enact
a law conferring a special jurisdiction upon the
courts of its selection, whereby said courts may,
after hearing all the parties interested, and
taking all the necessary safeguards, so that, a
party's day in court or other constitutional or
statutory right under the Commonwealth
Government should not be prejudiced by any of
said acts, processes or proceedings,
particullarly, those in Japanese-sponsored
courts, and subject to such other conditions as
the special law may provide, validate the
corresponding acts, processes or proceedings.
This, to my mind, would be more conducive to a
maximum of benefit and a minimum of prejudice
to the inhabitants of this country, rather than the
procedure favored by the majority.
Finally, let us not equalize the conditions then
prevailing in Manila to that prevailing in the
provinces, where the greater number of the
people where then living outside the towns, in
the farms and the hills. These people constitute
the great majority of the eighteen million
Filipinos. To them the semblance of an
administration of justice which Japanese
allowed, was practically unknown. But they
constituted the majority of loyal citizens to whom
President Roosevelt's message of October 23,
1943 refers. They — the majority of our people
— had an unshaken faith in the arrival of
American aid here and the final triumph of the
Allied cause. They were willing to wait for the
restoration of their rightful government, with its
courts and other institutions, for the settlement of
their differences. May in their common hardship
and sufferings under yoke of foreign oppression,
they had not much time to think of such
differences, if they did not utterly forget them.
420 | PART 1 C O N S T I 1 FULLTEXT
Their undoubted hatred of the invader was
enough to keep them away from the judicial
system that said invader allowed to have. Those
who voluntarily went to the courts in those tragic
days belong to the small minority.

As to the public order — why! any public order

which then existed was not due to the courts or
other departments of the puppet government. It
was maintained at the point of the bayonet by
the Japanese army, and in their own unique
fashion.

Footnotes

1
Resolution on motion for
reconsideration, see p. 371, post.

421 | PART 1 C O N S T I 1 FULLTEXT


LAWYERS LEAGUE V
AQUINO G.R. No. 73748 -
May 22, 1986
LAWYERS LEAGUE FOR A
BETTER PHILIPPINES vs.
AQUINO
(G.R. No. 73748 - May 22, 1986)
------------------------
(There is no "Full-Text" of this case. This is a Minute
Resolution made by the SC.)
Minute Resolutions
EN BANC
[G.R. No. 73748, May 22, 1986]
LAWYERS LEAGUE FOR A BETTER PHILIPPINES
AND/OR OLIVER A. LOZANO VS. PRESIDENT
CORAZON C. AQUINO, ET AL.
SIRS/MESDAMES:
Quoted hereunder, for your information, is a resolution
of this Court MAY 22, 1986.
In G.R. No. 73748, Lawyers League for a Better
Philippines vs. President Corazon C. Aquino, et al.;
G.R. No. 73972, People's Crusade for Supremacy of
the Constitution vs. Mrs. Cory Aquino, et al., and G.R.
No. 73990, Councilor Clifton U. Ganay vs. Corazon C.
Aquino, et al., the legitimacy of the government of
President Aquino is questioned. It is claimed that her
government is illegal because it was not established
pursuant to the 1973 Constitution.
As early as April 10, 1986, this Court* had already
voted to dismiss the petitions for the reasons to
be stated below. On April 17, 1986, Atty. Lozano
as counsel for the petitioners in G.R. Nos. 73748
and 73972 withdrew the petitions and manifested
that they would pursue the question by extra-
judicial methods. The withdrawal is functus oficio.
The three petitions obviously are not impressed with
merit. Petitioners have no personality to sue and their
petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It
belongs to the realm of politics where only the people
of the Philippines are the judge. And the people have
made the judgment; they have accepted the
government of President Corazon C. Aquino which is
in effective control of the entire country so that it is not
merely a de factogovernment but is in fact and law a
de jure government. Moreover, the community of
nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as
reorganized, have sworn to uphold the fundamental
law of the Republic under her government.
In view of the foregoing, the petitions are hereby
dismissed.
Very truly yours,
(Sgd.) GLORIA C. PARAS
Clerk of Court
* The Court was then composed of Teehankee, C.J.
and Abad Santos., Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ.--------
----------------------------------
DIGEST
FACTS:
On February 25, 1986, President Corazon Aquino
issued Proclamation No. 1 announcing that she and
Vice President Laurel were taking power.
On March 25, 1986, proclamation No.3 was issued
providing the basis of the Aquino government
assumption of power by stating that the "new
government was installed through a direct exercise of
the power of the Filipino people assisted by units of
the New Armed Forces of the Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is
legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a
justiciable matter but belongs to the realm of politics
where only the people are the judge.
 The Court further held that:
 The people have accepted the Aquino
government which is in effective control of the entire
country;
 It is not merely a de facto government but in
fact and law a de jure government; and
 The community of nations has recognized
the legitimacy of the new government.
FACTS:
On February 25, 1986, President Corazon Aquino issued
Proclamation No. 1 announcing that she and Vice President Laurel
were taking power. On March 25, 1986, proclamation No.3 was
issued providing the basis of the Aquino government assumption of
power by stating that the "new government was installed through a
direct exercise of the power of the Filipino people assisted by units
of the New Armed Forces of the Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a justiciable
matter but belongs to the realm of politics where only the people
are the judge. The Court further held that the people have accepted
the Aquino government which is in effective control of the entire
country. It is not merely a de facto government but in fact and law a
de jure government. The community of nations has recognized the
legitimacy of the new government.
422 | PART 1 C O N S T I 1 FULLTEXT
G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N
PER CURIAM:
In a petition for declaratory relief impleading no
respondents, petitioner, as a lawyer, quotes the
first paragraph of Section 5 (not Section 7 as
erroneously stated) of Article XVIII of the
proposed 1986 Constitution, which provides in
full as follows:
Sec. 5. The six-year term of the incumbent
President and Vice-President elected in the
February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to
noon of June 30, 1992.
The first regular elections for the President and
Vice-President under this Constitution shall be
held on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as
to whom it refers, he then asks the Court "to
declare and answer the question of the
construction and definiteness as to who, among
the present incumbent President Corazon
Aquino and Vice-President Salvador Laurel and
the elected President Ferdinand E. Marcos and
Vice-President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY
PROVISIONS of the proposed 1986 Constitution
refers to, . ...
The petition is dismissed outright for lack of
jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality
to sue or to bring this action, (Tan vs.
Macapagal, 43 SCRA 677), it is elementary that
this Court assumes no jurisdiction over petitions
for declaratory relief. More importantly, the
petition amounts in effect to a suit against the
incumbent President of the Republic, President
Corazon C. Aquino, and it is equally elementary
that incumbent Presidents are immune from suit
or from being brought to court during the period
of their incumbency and tenure.
The petition furthermore states no cause of
action. Petitioner's allegation of ambiguity or
vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public
record and common public knowledge that the
Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and
Vice-President Salvador H. Laurel, and to no
other persons, and provides for the extension of
their term to noon of June 30, 1992 for purposes
of synchronization of elections. Hence, the
second paragraph of the cited section provides
for the holding on the second Monday of May,
1992 of the first regular elections for the
President and Vice-President under said 1986
Constitution. In previous cases, the legitimacy of
the government of President Corazon C. Aquino
was likewise sought to be questioned with the
claim that it was not established pursuant to the
1973 Constitution. The said cases were
dismissed outright by this court which held that:
Petitioners have no personality to sue and their
petitions state no cause of action. For the
legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of
politics where only the people of the Philippines
are the judge. And the people have made the
judgment; they have accepted the government
of President Corazon C. Aquino which is in
effective control of the entire country so that it is
not merely a de facto government but in fact and
law a de jure government. Moreover, the
community of nations has recognized the
legitimacy of tlie present government. All the
eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the
Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748
[Lawyers League for a Better Philippines, etc.
vs. President Corazon C. Aquino, et al.]; G.R.
No. 73972 [People's Crusade for Supremacy of
the Constitution. etc. vs. Mrs. Cory Aquino, et
al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully
applicable to the petition at bar, mutatis
mutandis, there can be no question that
President Corazon C. Aquino and Vice-
President Salvador H. Laurel are the incumbent
and legitimate President and Vice-President of
the Republic of the Philippines.or the above-
quoted reasons, which are fully applicable to the
petition at bar,
ACCORDINGLY, the petition is hereby
dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa,
Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:
423 | PART 1 C O N S T I 1 FULLTEXT
GUTIERREZ, Jr., J., concurring: not yet been ratified and is therefore not yet
effective. I see here no actual conflict of legal
FELICIANO, JJ., concurring. rights susceptible of judicial determination at this
time. (Aetna Life Insurance Co. vs. Haworth, 300
U.S. 227; PACU vs. Secretary of Education, 97
The petitioner asks the Court to declare who are
Phil. 806.)
"the incumbent President and Vice President
elected in the February 7, 1986 elections" as
stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional
Commission of 1986.

We agree that the petition deserves outright

dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.

As to lack of cause of action, the petitioner's

prayer for a declaration as to who were elected
President and Vice President in the February 7,
1986 elections should be addressed not to this
Court but to other departments of government
constitutionally burdened with the task of making
that declaration.

The 1935 Constitution, the 1913 Constitution as

amended, and the 1986 Draft Constitution
uniformly provide 'that boards of canvassers in
each province and city shall certified who were
elected President and Vice President in their
respective areas. The certified returns are
transmitted to the legislature which proclaims,
through the designated Presiding Head, who
were duty elected.

Copies of the certified returns from the provincial

and city boards of canvassers have not been
furnished this Court nor is there any need to do
so. In the absence of a legislature, we cannot
assume the function of stating, and neither do
we have any factual or legal capacity to officially
declare, who were elected President and Vice
President in the February 7, 1986 elections.

As to who are the incumbent President and Vice

President referred to in the 1986 Draft
Constitution, we agree that there is no doubt the
1986 Constitutional Commission referred to
President Corazon C. Aquino and Vice President
Salvador H. Laurel.

Finally, we agree with the Resolution of the

Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS

the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that

the Constitution we are asked to interpret has
424 | PART 1 C O N S T I 1 FULLTEXT
 EN BANC
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S.
PUNO of the Court of Appeals dated 14
November 1990.
RESOLUTION
PADILLA, J.:
Petitioner Associate Justice Reynato S. Puno, a
member of the Court of Appeals, wrote a letter dated
14 November 1990 addressed to this Court, seeking
the correction of his seniority ranking in the Court of
Appeals.
It appears from the records that petitioner was first
appointed Associate Justice of the Court of Appeals
on 20 June 1980 but took his oath of office for said
position only on 29 November 1982, after serving as
Assistant Solicitor General in the Office of the
Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was
reorganized and became the Intermediate Appellate
Court pursuant to Batas Pambansa Blg. 129 entitled
"An Act Reorganizing the Judiciary. Appropriating
Funds Therefor and For Other Purposes." 2 Petitioner
was appointed Appellate Justice in the First Special
Cases Division of the Intermediate Appellate Court.
On 7 November 1984, petitioner accepted an
appointment to be ceased to be a member of the
Judiciary. 3
The aftermath of the EDSA Revolution in February
1986 brought about a reorganization of the entire
government, including the Judiciary. To effect the
reorganization of the Intermediate Appellate Court
and other lower courts, a Screening Committee was
created, with the then Minister of Justice, now
Senator Neptali Gonzales as Chairman and then
Solicitor General, now Philippine Ambassador to the
United Nations Sedfrey Ordoñez as Vice Chairman.
President Corazon C. Aquino, exercising legislative
powers by virtue of the revolution, issued Executive
Order No. 33 to govern the aforementioned
reorganization of the Judiciary. 4
The Screening Committee recommended the return
of petitioner as Associate Justice of the new Court of
Appeals and assigned him the rank of number eleven
(11) in the roster of appellate court justices. When
the appointments were signed by President Aquino
on 28 July 1986, petitioner’s seniority ranking
changed, however, from number eleven (11) to
number twenty six (26). 5
Petitioner now alleges that the change in his
seniority ranking could only be attributed to
inadvertence for, otherwise, it would run counter to
the provisions of Section 2 of Executive Order No.
33, which reads: chanrob les vi rtual lawlib rary
"SECTION 2. Section 3, Chapter 1 of Batas
Pambansa Blg. 129, is hereby amended to read as
follows:jgc:chanrob les.co m.ph
"SEC. 2. Organization. — There is hereby created a
Court of Appeals which shall consist of a Presiding
Justice and fifty Associate Justices who shall be
appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his
appointment and the Associate Justice shall have
precedence according to the dates of their respective
appointments, or when the appointments of two or
more shall bear the same date, according to the
order in which their appointments were issued by the
President. Any Member who is reappointed to the
Court after rendering service in any other position in
the government shall retain the precedence to which
he was entitled under his original appointment, and
his service in the Court shall, for all intents and
purpose be considered as continuous and
uninterrupted." 6
Petitioner elaborates that President Aquino is
presumed to have intended to comply with her own
Executive Order No. 33 so much so that the
correction of the inadvertent error would only
implement the intent of the President as well as the
spirit of Executive Order No. 33 and will not provoke
any kind of constitutional confrontation (between the
President and the Supreme Court). 7
Petitioner points to the case of Justice Oscar
Victoriano, former Presiding Justice of the Court of
Appeals who, according to petitioner, was transferred
from his position as Justice of the Court of Appeals to
the Ministry of Justice as Commissioner of Land
Registration and in 1986 was reappointed to the
Court of Appeals. Petitioner states that his
(Victoriano’s) stint in the Commission of Land
Registration did not adversely affect his seniority
ranking in the Court of Appeals, for, in his case,
Executive Order No. 33 was correctly applied. 8
In a resolution of the Court en banc dated 29
November 1990, the Court granted Justice Puno’s
request. 9 It will be noted that before the issuance of
said resolution, there was no written opposition to,
or comment on petitioner’s aforesaid request. The
dispositive portion of the resolution reads:
jgc:chanro bles.c om.ph
"IN VIEW WHEREOF, the petition of Associate Justice
Reynato S. Puno for correction of his seniority
ranking in the Court of Appeals is granted. The
presiding Justice of the Court of Appeals, the
Honorable Rodolfo A. Nocon, is hereby directed to
correct the seniority rank of Justice Puno from
number twelve (12) to number five (5). Let copies of
this Resolution be furnished the Court Administrator
and the Judicial and Bar Council for their guidance
and information." 10
A motion for reconsideration of the resolution of the
Court en banc dated 29 November 1990 was later
filed by Associate Justices Jose C. Campos, Jr. and
Luis A. Javellana, two (2) of the Associate Justices
affected by the ordered correction. They contend
that the present Court of Appeals is a new Court with
fifty one (51) members and that petitioner could not
claim a reappointment to a prior court; neither can
he claim that he was returning to his former court,
for the courts where he had previously been
appointed ceased to exist at the date of his last
appointment. 11
The Court en banc in a resolution dated 17 January
1992 required the petitioner to file his comment on
the motion for reconsideration of the resolution
dated 29 November 1990.
425 | PART 1 C O N S T I 1 FULLTEXT

In his Comment, petitioner argues that, by virtue of
Executive Order No. 33 read in relation to B.P. Blg.
129, his seniority ranking in the Court of Appeals is
now number five (5) for, though President Aquino
rose to power by virtue of a revolution, she had
pledged at the issuance of Proclamation No. 3
(otherwise known as the Freedom Constitution) that
"no right provided under the unratified 1973
Constitution (shall) be absent in the Freedom
Constitution." 12
Moreover, since the last sentence of Section 2 of
Executive Order No. 33 virtually re-enacted the last
sentence of Sec. 3, Chapter 1 of B.P. Blg. 129,
statutory construction rules on simultaneous repeal
and re-enactment mandate, according to petitioner,
the preservation and enforcement of all rights and
liabilities which had accrued under the original
statute. 13 Furthermore, petitioner avers that,
although the power of appointment is executive in
character and cannot be usurped by any other
branch of the Government, such power can still be
regulated by the Constitution and by the appropriate
law, in this case, by the limits set by Executive Order
NO. 33 14 for the power of appointment cannot be
wielded in violation of law. 15
Justices Javellana and Campos were required by the
Court to file their reply to Justice Puno’s comment on
their motion for reconsideration of the resolution of
the Court en banc dated 24 January 1991. chanrob les.com: cralaw: red
In their Reply and Supplemental Reply, Associate
Justices Javellana and Campos submit that the
appeal or request for correction filed by the
petitioner was addressed to the wrong party. They
aver that as petitioner himself had alleged the
mistake to be an "inadvertent error" of the Office of
the President, ergo, he should have filed his request
for correction also with said Office of the President
and not directly with the Supreme Court. 16
Furthermore, they point out that petitioner had
indeed filed with the Office of the President a request
or petition for correction of his ranking, (seniority)
but the same was not approved such that his
recourse should have been an appropriate action
before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office
of the President they argue, should be respected by
the Supreme Court "not only on the basis of the
doctrine of separation of powers but also their
presumed knowledge ability and even expertise in
the laws they are entrusted to enforce" 17 for it (the
non-approval) is a confirmation that petitioner’s
seniority ranking at the time of his appointment by
President Aquino was, in fact, deliberate and not an
"inadvertent error" as petitioner would have the
Court believe. 18
The resolution of this controversy is not a pleasant
task for the Court since it involves not only members
of the next highest court of the land but persons who
are close to members of this Court. But the
controversy has to be resolved. The core issue in this
case is whether the present Court of Appeals is a
new court such that it would negate any claim to
precedence or seniority admittedly enjoyed by
petitioner in the Court of Appeals and Intermediate
Appellate Court existing prior to Executive Order No.
33 or whether the present Court of Appeals is merely
a continuation of the Court of Appeals and
Intermediate Appellate Court existing prior to said
Executive Order No. 33.
It is the holding of the Court that the present Court
of Appeals is a new entity, different and distinct from
the Court of Appeals or the Intermediate Appellate
Court existing prior to Executive Order No. 33, for it
was created in the wake of the massive
reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of
the people power (EDSA) revolution in 1986.
A resolution has been defined as "the complete
overthrow of the established government in any
country or state by those who were previously
subject to it" 19 or as "a sudden, radical and
fundamental change in the government or political
system, usually effected with violence or at least
some acts of violence." 20 In Kelsen’s book, General
Theory of Law and State, it is defined as that which
"occurs whenever the legal order of a community is
nullified and replaced by a new order . . . a way not
prescribed by the first order itself." 21
It was through the February 1986 revolution, a
relatively peaceful one, and more popularly known as
the "people power revolution" that the Filipino people
tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power
of the Aquino government.
From the natural law point of view, the right of
revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or
effect radical reforms in their system of government
or institutions by force or a general uprising when
the legal and constitutional methods of making such
change have proved inadequate or are so obstructed
as to be unavailable." 22 It has been said that "the
locus of positive law-making power lies with the
people of the state" and from there is derived "the
right of the people to abolish, to reform and to alter
any existing form of government without regard to
the existing constitution." 23
The three (3) clauses that precede the text of the
Provisional (Freedom) Constitution, 24 read: jgc:chanrob les.com. ph
"WHEREAS, the new government under President
Corazon C. Aquino was installed through a direct
exercise of the power of the Filipino people assisted
by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done
in defiance of the provisions of the 1973
Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the
Philippines, by virtue of the powers vested in me by
the sovereign mandate of the people, do hereby
promulgate the following Provisional
Constitution."25cralaw:red
These summarize the Aquino government’s position
that its mandate is taken from "a direct exercise of
the power of the Filipino people." 26
Discussions and opinions of legal experts also
proclaim that the Aquino government was
"revolutionary in the sense that it came into
existence in defiance of the existing legal processes"
27 and that it was a revolutionary government
"instituted by the direct action of the people and in
opposition to the authoritarian values and practices
426 | PART 1 C O N S T I 1 FULLTEXT
of the overthrown government." 28
A question which naturally comes to mind is whether
the then existing legal order was overthrown by the
Aquino government. "A legal order is the
authoritative code of a polity. Such code consists of
all the rules found in the enactments of the organs of
the polity. Where the state operates under a written
constitution, its organs may be readily determined
from a reading of its provisions. Once such organs
are ascertained, it becomes an easy matter to locate
their enactments. The rules in such enactments,
along with those in the constitution, comprise the
legal order of that constitutional state." 29 It is
assumed that the legal order remains as a "culture
system" of the polity as long as the latter endures 30
and that a point may be reached, however, where
the legal system ceases to be operative as a whole
for it is no longer obeyed by the population nor
enforced by the officials. 31
It is widely known that Mrs. Aquino’s rise to the
presidency was not due to constitutional processes;
in fact, it was achieved in violation of the provisions
of the 1973 Constitution as a Batasang Pambansa
resolution had earlier declared Mr. Marcos at the
winner in the 1986 presidential election. 32 Thus it
can be said that the organization of Mrs. Aquino’s
Government which was met by little resistance and
her control of the state evidenced by the
appointment of the Cabinet and other key officers of
the administration, the departure of the Marcos
Cabinet officials, revampt of the Judiciary and the
Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the
Filipino.
The Court holds that the Court of Appeals and
Intermediate Appellate Court existing prior to
Executive Order No. 33 phased out as part of the
legal system abolished by the revolution and that the
Court of Appeals established under Executive Order
No. 33 was an entirely new court with appointments
thereto having no relation to earlier appointments to
the abolished courts, and that the reference to
precedence in rank contained in the last sentence of
Sec. 2, BP Blg. No. 129 as amended by Executive
Order No. 33 refers to prospective situations as
distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order
No. 33 did not abolish the precedence or seniority
ranking resulting from previous appointment to the
Court of Appeals or Intermediate Appellate Court
existing prior to the 1986 revolution, it is believed
that President Aquino as head of then revolutionary
government, could disregard or set aside such
precedence or seniority in ranking when she made
her appointments to the reorganized Court of
Appeals in 1986.
It is to be noted that, at the time of the issuance of
Executive Order No. 33, President Aquino was still
exercising the powers of a revolutionary government,
encompassing both executive and legislative powers,
such that she could, if she so desired, amend, modify
or repeal any part of B.P. Blg. 129 or her own
Executive Order No. 33. It should also be
remembered that the same situation was still in force
when she issued the 1986 appointments to the Court
of Appeals. In other words, President Aquino, at the
time of the issuance of the 1986 appointments,
modified or disregarded the rule embodied in B.P.
Blg. 129 as amended by Executive Order No. 33, on
precedence or seniority in the case of the petitioner,
for reasons known only to her. Since the
appointment extended by the President to the
petitioner in 1986 for membership in the new Court
of Appeals with its implicit ranking in the roster of
justices, was a valid appointment anchored on the
President’s exercise of her then revolutionary
powers, it is not for the Court at this time to question
or correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for
Reconsideration and the seniority rankings of
members of the Court of Appeals, including that of
the petitioner, at the time the appointments were
made by the President in 1986, are recognized and
upheld.
SO ORDERED.
Paras, Griño-Aquino, Regalado, Davide, Jr. and
Romero, JJ., concur.
Separate Opinions
FELICIANO, J., concurring: chanrob 1es vi rtua l 1aw lib ra ry
I agree with the conclusion reached in the majority
opinion written by my learned brother, Padilla, J. In
particular, I agree that the Court of Appeals
established by Executive Order No. 33 is a new
court, and was not merely the old Intermediate
Appellate Court with a new label.
If one examines the provisions of B.P. Blg. 129,
known as "The Judiciary Reorganization Act of 1980,"
relating to the old Intermediate Appellate Court, it is
quite clear that the previously existing Court of
Appeals was abolished and a new court,
denominated the Intermediate Appellate Court, was
created. Thus, Section 3 of B.P. Blg. 129 reads as
follows:jgc:chanrob les.co m.ph
"Sec. 3. Organization. — There is hereby created an
Intermediate Appellate Court which shall consist of a
Presiding Appellate Justice and forty-nine Associate
Appellate Justices who shall be appointed by the
President of the Philippines. The Presiding Appellate
Justice shall be so designated in his appointment,
and the Associate Appellate Justices shall have
precedence according to the dates of their respective
appointments, or when the appointments of two or
more of them shall bear the same date, according to
the order in which their appointments were issued by
the President. Any member who is reappointed to the
Court after rendering service in any other position in
the government shall retain the precedence to which
he was entitled under his original appointment, and
his service in Court shall, to all intents and purposes,
be considered as continuous and uninterrupted."
(Emphasis supplied)
Section 44 of the same statute provided as
follows:jgc:chanrob les.co m.ph
"Sec. 44. Transitory provisions. — The provisions of
this Act shall be immediately carried out in
accordance with an Executive Order to be issued by
the President. The Court of Appeals, the Courts of
First Instance, the Circuit Criminal Courts, the
Juvenile and Domestic Relations Courts, the Courts
427 | PART 1 C O N S T I 1 FULLTEXT
of Agrarian Relations, the City Courts, the Municipal
Courts, and the Municipal Circuit Courts shall
continue to function as presently constituted and
organized, until the completion of the reorganization
provided in this Act as declared by the President.
Upon such declaration, the said courts shall be
deemed automatically abolished and the incumbents
thereof shall cease to hold office. The cases pending
in the old Courts shall be transferred to the
appropriate Courts constituted pursuant to this Act,
together with the pertinent function, records,
equipment, property and the necessary personnel.
x x
(Emphasis supplied)
Executive Order No. 33, promulgated on 28 July
1986, provided in part as follows:
"Section 2. Section 3, Chapter I of Batas Pambansa
Blg. 129, is hereby amended to read as follows:
‘SEC. 3. Organization — There is hereby created a
Court of Appeals which shall consist of a Presiding
Justice and fifty Associate Justices who shall be
appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his
appointment, and the Associate Justices shall have
precedence according to the dates of their respective
appointments, or when the appointments of two or
more of them shall bear the same date, according to
the order in which their appointments were issued by
the President. Any member who is reappointed to the
Court after rendering service in any other position in
the government shall retain the precedence to which
he was entitled under his original appointment, and
his service in the Court shall, for all intents and
purposes, be considered as continuous and
uninterrupted.’" (Emphasis supplied)
Although Executive Order No. 33 spoke of amending
Section 3, Chapter 1 of B.P. Blg. 129, it will be seen
that what really happened was the re-enactment of
said Section 3, Chapter 1 of B.P. Blg. 129. In other
words, much more happened than simply the
renaming of the old Intermediate Appellate Court
into (once again) Court of Appeals. If all that
Executive Order No. 33 wanted to achieve was the
relabeling of the old Intermediate Appellate Court
into the "Court of Appeals," there was no need to
amend or re-enact Section 3 of B.P. Blg. 129. For
Section 8 of Executive Order No. 33 provided as
follows:
jgc:chanrob les.co m.ph
"SECTION 8. The terms ‘Intermediate Appellate
Court, Presiding Appellate Justice and Associate
Appellate Justice(s)’ used in the Judiciary
Reorganization Act of 1980 or in any other law or
executive order shall hereafter mean Court of
Appeals, Presiding Justice and Associate Justice(s),
respectively." cralaw virt ua1aw lib rary
Thus, President Aquino was quite free, legally
speaking to appoint to the new Court of Appeals
whoever in her judgment was fit and proper for
membership in that new court in an order of
precedence that she was just then establishing.
The sentence found in Section 3 of B.P. Blg. 129 as
amended or re-enacted through the medium of
Section 2 of Executive Order No. 33 —
"Any Member who is reappointed to the Court after
rendering service in any other position in the
government shall retain the precedence to which he
was entitled under his original appointment, and his
service in the Court shall, for all intents and
purposes, be considered as continuous and
uninterrupted."cralaw virtua1aw lib rary
which my distinguished brother in the Court,
Gutierrez, Jr., J., very heavily stressed, contemplates
in my submission the situation of a member of the
x new Court of Appeals accepting appointment to some
other department or branch of government, outside
the Judiciary, and who later receives an appointment
once again to that same Curt of Appeals. But Mr.
Justice Reynato S. Puno was not in such a situation.
The last preceding appointment to the Judiciary of
jgc:chanrob les.co m.ph
Mr. Justice Reynato S. Puno was to the then
Intermediate Appellate Court newly created by B.P.
Blg. 129. In 1984, he left that court to become
chanrob1es vi rtua l 1aw lib ra ry
Deputy Minister in the Ministry of Justice. His next
appointment to the Judiciary was not to the old
Intermediate Appellate Court, which by that time had
passed on to history. His appointment dated 28 July
1986, was, in my view, as already noted, to the new
Court of Appeals established by Executive Order No.
33. Thus, the last sentence of Section 3 of B.P. Blg.
129 (before re-enactment by Executive Order No.
33) afforded no basis for a claim to the same
numerical precedence in the new Court of Appeals
that he would have been entitled to had the old
Intermediate Appellate Court not gone out of
existence. It is difficult for me to understand how a
claim to a particular position in an order of
precedence can be made where the court itself, to
which the new appointment is made, is a new and
distinct court.
I vote to grant the Motion for Reconsideration.
BELLOSILLO, J., concurring: chanrob1e s virtu al 1aw lib rary
I agree with the ponencia of Mr. Justice Padilla, so I
vote to grant the motion for reconsideration of Our
Resolution of November 29, 1990. I am for
respecting the seniority ranking of the Associate
Justices of the Court of Appeals at the time they
were appointed by the President on July 31, 1986.
I must admit that, like Mr. Justice Gutierrez, Jr., and
Mr. Justice Padilla, it was not easy for me to decide
to participate in the deliberations in this case
considering that it involves esteemed colleagues in
the Court of Appeals. As such, when subject
Resolution was promulgated, I did not react despite
the proddings of well-meaning friends. It refused to
be dragged into the "fray" in deference to Justice
Reynato S. Puno who would be adversely affected. I
remained firm in my resolve to stay away from the
controversy. It was to me a personal privilege so to
do, which i could waive, as I did.
But circumstances have changed; not that I no
longer revere my friendship with Justice Puno, but as
a member now of this Court it has become my duty
— no longer a mere privilege, much less a right — to
chanro bles law l ib rary
aid the Court in resolving this controversy in the
fairest possible way, a responsibility I find no
justification to shirk.
On August 1, 1986, at the oath-taking ceremonies
428 | PART 1 C O N S T I 1 FULLTEXT
for the newly-appointed members of the Court of
Appeals at Malacañang, when I noticed Justice Puno
take a seat on my right, 1 I asked him to transfer to
the left where our senior justices were assigned. I
was assuming that he should be on the left because
he was appointed to the old Appellate Court ahead of
me. But he showed me the list where he appeared as
No. 26, Justice Lising, No. 25, and I was No. 24.
Since he appeared perturbed with his new rank, I
suggested to him to seek the help of then Justice
Secretary Neptali A. Gonzales, Chairman of the
Screening Committee that processed the
appointments of the new members of the Court of
Appeals, and who was then just a meter and a half in
front of us. But after talking to Secretary Gonzales,
Justice Puno returned to his original assigned seat.
When I asked him what happened, he simply
shrugged his shoulders. Obviously, he failed in his
bid.
We then took our oath in the order we were ranked
in the list.
Some two (2) months or so later, in an En Banc
session back in the Court of Appeals, as we were
seated side by side with Justice Puno, 2 I inquired
again from him as to what happened to his request
with Malacañang conveyed through the Presiding
Justice for the correction of his ranking. Justice Puno
told me it was not granted.
The letter of then Presiding Justice Emilio A.
Gancayco dated August 7, 1986, which was his
second in fact on the subject, addressed to Executive
Secretary Joker P. Arroyo, is enlightening and
informative —
"Dear Sir:chanrob1e s virtual 1aw l ibra ry
In relation to my letter of August 5, 1986 informing
you of the possible over-sight in the ranking of Mr.
Justice REYNATO S. PUNO in his reappointment as
member of this Court, I am furnishing you a
certification of the Clerk of Court to the same effect,
and also in relation to the ranking of Messrs. Rodolfo
A. Nocon and Jorge A. Coquia who in accordance
with their original appointment to this Court are
more senior than Mr. Justice Oscar R. Victoriano in
the said order.
If Her Excellency President Corazon Aquino should
decide to rearrange the ranking of the incumbent
justices of this Court in accordance with the
provisions of Section 2, Executive Order # 33 their
proper ranking should be as follows: chanrob1es v irt ual 1aw l ibra ry
No. 3 — Mr. Justice Rodolfo A. Nocon;
No. 4 — Mr. Justice Jorge A. Coquia;
No. 5 — Mr. Justice Oscar R. Victoriano; and
No. 11 — Mr. Justice Reynato S. Puno."
While this letter perhaps did not elicit the desired
response from Executive Secretary Arroyo as his
answer did not squarely settle the issue, the
message is clear, i.e., Malacañang did not grant the
request for correction of what was perceived to be a
"possible oversight", even after it was twice brought
to its attention. Here I am reminded of the principle
in procedure that a motion that is not granted,
especially after an unreasonable length of time, is
deemed denied, and the lapse of more than four (4)
years before Justice Puno finally came to Us 3 is
reasonably unreasonable.
The letter-appointment of President Corazon C.
Aquino addressed to then Chief Justice Claudio
Teehankee dated July 31, 1986, in fact categorically
specifies the order of seniority of her appointees,
thus —
"Dear Mr. Chief Justice.
I have appointed the Presiding Justice and the
Associate Justices of the Court of Appeals under the
following order of seniority:chanrob 1es vi rtual 1a w libra ry
1. Hon. Emilio A. Gancayco, Presiding Justice . . .
3. Hon. Oscar R. Victoriano, Associate Justice
4. Hon. Rodolfo A. Nocon, Associate Justice
5. Hon. Jorge A. Coquia, Associate Justice . . .
12. Hon. Jose C. Campos, Jr., Associate Justice . . .
16. Hon. Luis A. Javellana, Associate Justice . . .
26. Hon. Reynato S. Puno, Associate Justice . . ." cralaw virtua1aw l ibra ry
x x x"
Considering the circumstances herein narrated, I find
it difficult to yield to the proposition that an error
was committed through inadvertence by Malacañang
in the ranking of the justices appointed to the Court
of Appeals on July 31, 1986.
The above-quoted letter of President Aquino also
brings to focus the ranking of Justice Oscar R.
Victoriano who was junior to Justices Nocon and
Coquia in the old Court, as reflected in the letter of
Presiding Justice Gancayco. However, in the letter of
the President, Justice Victoriano was ranked No. 3,
while Justices Nocon and Coquia were ranked No. 4
and No. 5, respectively. Hence, it is not accurate to
say that Justice Victoriano was reinstated to his
former rank in the old Court, but was even given a
rank higher than Justices Nocon and Coquia. This
"possible oversight" was also brought to the
attention of Malacañang but, like the case of Justice
Puno, no correction was made. chan roble s virtual lawl ibra ry
All these clearly support the view of Mr. Justice
Padilla in his ponencia, as well as of Mr. Justice
Feliciano in his concurring opinion, that the present
Court of Appeals is an entirely different court,
distinct from the old Intermediate Appellate Court or
the former Court of Appeals, with a new members
although some were drawn from the now defunct
Intermediate Appellate Court, and that the "error"
referred to by Justice Puno could not have been only
cralaw virtua 1aw lib rary through "inadvertence" but deliberate, otherwise,
Malacañang could have readily effected the
correction?
But whether the "error" was deliberate or committed
through inadvertence, is Our Court the proper venue
for the correction? Can We now correct this alleged
error of the appointing authority? Worse, can We
direct the Office of the President to do what is
exclusively within its prerogative?
429 | PART 1 C O N S T I 1 FULLTEXT
This brings me to the final point which bothers me
still further. If We sustain the claim that the present
Court of Appeals is merely a continuation of the old
Intermediate Appellate Court, or of the old Court of
Appeals, then We may be swarmed with requests not
only for re-ranking but also for reinstatement of
those who were not reappointed on July 31, 1986,
but against whom no charges have been filed. For
then, should they not be allowed to enjoy their
security of tenure as civil servants under the
Constitution?
In the case of Justice Jorge S. Imperial, he was a
member of the old Intermediate Appellate Court who
was not reappointed to the new Court of Appeals on
July 31, 1986. There was no charge against him. He
was later reappointed but only on January 2, 1987.
Should We also order that he be reinstated to his
former rank in the Intermediate Appellate Court?
Then, We may have to dislodge some of the present
division Chairmen of the Court of Appeals to
accommodate him. That would be unsettling,
disturbing, and disruptive of the present system. I do
not think We wish this to happen.
GUTIERREZ, JR., J., dissenting: chanro b1es vi rtua l 1aw lib ra ry
I regret that I have to differ from the position taken
by Mr. Justice Padilla regarding the seniority ranking
of Justice Reynato S. Puno in the Court of Appeals.
I agree that the resolution of the controversy is not a
pleasant one for us since it involves persons who are
close to the members of this Court. For me, the task
is particularly difficult because apart from close
personal relationship, I also highly respect the
parties’ considerable talents, abilities and
qualifications. I have known Justice Jose C. Campos,
Jr. since my student days and as a junior member of
this Court, I once urged his nomination for
appointment to the Supreme Court even before he
started to serve in the Court of Appeals. Justice Luis
A. Javellana was my colleague in the Social Security
System while Justice Reynato S. Puno and I worked
together in the Office of the Solicitor General.
I believe, however, that we can resolve the issues on
the basis of the facts and the applicable law, in the
same way that we reverse or affirm the parties’
respective ponencias disregarding personal feelings
or close association.
The applicable provision of law in this case was
introduced into the Judiciary Act of 1948 by Rep. Act
No. 5204 on June 15, 1968 when it amended the
first paragraph of Section 24 to read:
x x x of Executive Order No. 33 should be followed
"Provided, however, that any member of the Court of
Appeals who has been reappointed to that court after
rendering service in any other branch of the
government shall retain the precedence to which he
is entitled under his original appointment and his
service in court shall, to all intents and purposes, be
considered as continuous and uninterrupted . . ."
This provision was reiterated in all subsequent
repealing or amendatory acts and continues to the
present. It is found in Batas Pambansa Blg. 129,
Section 3 and in Executive Order No. 33 under
President Corazon C. Aquino reorganized the Court of
Appeals.
I respectfully submit that from 1968 to 1992, there
was no single moment when this provision ceased to
exist. It was never repealed and never disappeared
from the law. Everybody, including the appointing
power is, of course, bound by the law.
I agree with Justice Padilla’s discussion of President
Aquino’s powers in a revolutionary government, a
government revolutionary in the sense that it came
into existence in defiance of the existing legal
processes.
I, however, believe that the appointments of the
Justices of the Court of Appeals in 1986 were not a
personal act of a revolutionary President. Far from it.
First, President Aquino’s government ceased to be
revolutionary on March 25, 1986 when she
promulgated Proclamation No. 3, which she called
the Freedom Constitution. Her government became a
constitutional one bound by the Freedom
Constitution and the executive orders issued under
its authority.
Second, one significant provision of the Freedom
Constitution states that "all elective and appointive
officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by
proclamation or executive order or upon the
designation or appointment and qualification of their
successors, if such appointment is made within a
period of one year from February 26, 1986." (Section
2, Article III, Emphasis supplied).
Third, the President implemented the above
provision of the Constitution on July 28, 1986 when
she issued Executive Order No. 33 which amended
B.P. 129. As earlier stated, Executive Order No. 33
reiterated verbatim the provision of B.P. No. 129
which provided for retention of precedence of a
member who is reappointed after a sting in another
position in the government.
President Aquino was bound by the provisions of
Executive Order No. 33 because it is a law enacted
pursuant to constitutional authority. She could no
longer act as a revolutionary President because there
was a Constitution, and there were statutes under
that Constitution, in existence.
More important, Executive Order No. 33 was enacted
precisely to provide for the reorganization of the
chanrob1es vi rt ual 1aw li bra ry Intermediate Appellate Court into the Court of
Appeals. The President intended that every provision
precisely for the purpose for which it was enacted,
namely, reorganization of the appellate court. I
cannot understand the reasoning which says that all
provisions of Executive Order No. 33 must apply in
the reorganization of the Court of Appeals except the
provision on retention of seniority by a reappointed
member which must be for the future only.
cralaw virtua1aw l ibra ry
Even assuming that this one sentence of Executive
Order No. 33 was intended to be prospective, then
the President has to follow B.P. No. 129 because
Proclamation No. 3, Article IV provides: jgc:chanrob les.com .ph
"SECTION 1. All existing laws, decrees, executive
orders, proclamations, letters of instruction,
430 | PART 1 C O N S T I 1 FULLTEXT
implementing rules and regulations, and other No. 33 but also the laws on the same subject which
executive issuances not inconsistent with this preceded it.
Proclamation shall remain operative until amended,
modified, or repealed by the President or the regular That the President never intended to violate a key
legislative body to be established under a New provision of law is shown in the September 17, 1986
Constitution."cralaw vi rtua 1aw lib rary letter of Executive Secretary Joker P. Arroyo,
appended to the Reply submitted by Justices Campos
For us lawyers, there is one signal feature of and Javellana. The explanation reads: jgc:chanrob les.com. ph

President Aquino’s six years in the presidency and

this is her dedicated personal observance of the rule "17 September 1986
of law. Even when some of our decisions nullified her
favorite projects, she unhesitatingly ordered Hon. Emilio A. Gancayco
compliance with our interpretation of the law. I
cannot believe that the President would knowingly Presiding Justice
violate one provision of a law she promulgated even
as she complied with ever other provision of that Court of Appeals
same law.
Manila.
Not only the law but also the facts support the
correctness of our November 29, 1990 resolution. chanrob les law l ibra ry : red Sir:
chanrob 1es vi rtual 1aw lib rary

We stated in our resolution: jgc:chan robles. com .ph In reply to your enclosed letter of August 7, 1986,
please be informed that the President had nothing to
"Following this specific provision on seniority, the do with the order of seniority. The list and order of
Screening Committee recommended the return and seniority was submitted by a screening committee
reappointment of Justice Puno as Associate Justice of and passed on to the Supreme Court for review.
the New Court of Appeals. He was assigned the
seniority rank of number eleven (11) following Very truly yours,
Associate Justice Vicente V. Mendoza who was given
the seniority rank of number ten (10). Unfortunately, (SGD.) JOKER P. ARROYO
however, due to a mistake which can only be
inadvertent, the seniority rank of Justice Puno Executive Secretary"
appears to have been changed from number eleven
(11) to number twenty six (26), after the When Secretary Arroyo states that the President had
appointments in the new Court of Appeals were nothing to do with the order or sequence of seniority,
signed by President Aquino. Through his letter, it means that she just followed the recommendations
Justice Puno prays for the correction of his seniority of her own Screening Committee, which
ranking alleging that he should now be given the recommendations had already been reviewed by the
seniority rank of number five (5) instead of number Supreme Court. She did not select any
twelve (12) in the Court of Appeals. recommendees her own. She never deviated from
the recommendations because everybody
We find the petition for correction of ranking by recommended was appointed. The change from No.
Justice Puno to be meritorious. The mistake in the 11 to No. 26 could not have been a deliberate act of
ranking of Justice Puno from number eleven (11) to the President as she had nothing to do with the order
number twenty six (26) in the 1986 judicial of seniority of the Justices she was appointing. The
reorganization has to be corrected, otherwise, there change could only have been an inadvertence
will be a violation of the clear mandate of Executive because it was violative not only of the law but also
Order No. 33 that ‘any member who is reappointed of the recommendations of her Screening
to the Court after rendering service in any other Committee.
position in the government shall retain the
precedence to which he was entitled under his There are other matters raised in the letter and reply
original appointment, and his service in the court of Justices Campos and Javellana which have been
shall, for all intents and purposes be considered as answered by Justice Puno in his Comment. I find no
continuous and uninterrupted.’ In fine, the executive need to comment on them at this time.
service of Justice Puno as Deputy Minister of Justice
should not adversely affect the continuity of his I regret if my answer to the query of Justice Campos
service in the judiciary upon his return and led him to be lulled into inaction. Justice Campos
appointment thereto on July 28,1 986. Otherwise, called me up over the telephone inquiring about the
the salutary purpose of Executive Order No. 33 which petition of Justice Puno before I was aware that
is to attract competent members of the judiciary to there was such a petition. I try to read all petitions
serve in other branches of the government without filed with the court en banc but I do so only after
fear of losing their seniority status in the judiciary in they are placed in the agenda and are in the next
the event of their return thereto would be defeated . order of business of a particular session. My staff
. ." (Res. dtd. 11-29-90, pp. 2-3) never places a copy of any petition on my desk until
it is entered in the agenda. It is unfortunate that
Nobody disputes the fact that the Screening Justices Campos, Camilon, dela Fuente, Javellana,
Committee headed by the then Secretary of Justice Purisima, de Pano, and Bellosillo were not furnished
Neptali Gonzales and a member of which was our copies of the letter-petition of Justice Puno but this is
own Justice Leo D. Medialdea ranked Justice Reynato for then Chief Justice Marcelo B. Fernan and Clerk of
S. Puno as No. 11 in their recommendation. Court Atty. Daniel T. Martinez to explain.

When the appointments came out, Mr. Puno was No. Justices Campos and Javellana state that "Justice
26. This, of course, violates not only Executive Order Puno is 50 years old and to put him in No. 5 will
431 | PART 1 C O N S T I 1 FULLTEXT
destroy the chances of those displaced by him who Pambansa on 10 August 1981 and signed into law by
are older than he to aspire for promotion." cralaw virt ua1aw lib ra ry President Ferdinand E. Marcos on 14 August 1981.

The fears of the good Justices are unfounded. Except 3. Rollo, p. 4.

for the Presiding Justice, a greater number of
"junior" Justices have been appointed in the past ten 4. Executive Order No. 33 was issued on 28 July
years to the Supreme Court from the Court of 1986 by President Corazon C. Aquino.
Appeals, than the most senior Justices of that Court.
In other words, there has been more by passing of 5. Rollo, p. 2.
senior members than adherence to the seniority
listing. In fact, the latest nominations of the Judicial 6. Rollo, pp. 5, 5-A.
and Bar Council for position to which Justice Bellosillo
was appointed, included Justice Campos and 7. Ibid., p. 5-A.
excluded Justices Kapunan and Puno. I understand
that in the past few vacancies in this court, Justice 8. Ibid.
Campos has been nominated more often than Justice
Puno. chan roble s virtualawl ibra ry cha nrob les.co m:chan roble s.com.p h 9. Rollo, pp. 1-3.

Our resolution dated November 29, 1990 correcting 10. Ibid., p. 3.

the seniority ranking of Justice Puno was a
unanimous decision of this Court except for Mr.
Justice Padilla were discussed and fully deliberated
upon. Since our resolution is based on both the facts
and the law, I see no reason why we should modify
or set it aside.
I, therefore, vote to reiterate the Court’s resolution
dated November 29, 1990.
Narvasa, C.J., Bidin, Medialdea and Nocon, JJ.,
concur.
CRUZ, J., dissenting:
11. Ibid., p. 18.
12. Rollo, pp. 28-29. Remarks of President Corazon
C. Aquino at a media briefing announcing the
promulgation of a transition Constitution (otherwise
known as the Freedom Constitution) at the Freedom
Hall, Malacañang, March 25, 1986.
13. Rollo, pp. 26-27. See also Alcantara, Statutes,
1990 ed., p. 164 citing Crawford: Statutory
Construction and Agpalo, Statutory Construction,
1990 ed., p. 304 citing American Bible Society v. City
chan rob1es v irt ual 1aw l ibra ry of Manila, 101 Phil. 386.

I join Mr. Justice Gutierrez in his dissent, with these 14. Rollo, p. 41.
brief additional remarks.
15. Ibid., p. 42.
Sec. 3 of BP 129 laid down the original precedence
rule applicable to members of the Intermediate 16. Rollo, pp. 47-50.
Appellate Court. This was embodied in Sec. 2 of EO
33 without change except as to the name of the 17. Cuerdo v. Commission on Audit, 166 SCRA 657
court. The first provision was not repealed. As Mr. citing Tagum Doctors Enterprises v. Gregorio Apsay,
Justice Feliciano points out, it was merely "re- Et Al., G.R. No. 81188, August 30, 1988.
enacted." cralaw virtua 1aw lib rary

18. Rollo, p. 49.

I do not think the re-enacted rule was intended to
operate prospectively only. I believe it continues to 19. Kitlow v. Kiely, 44 F. Ed. 227, 232.
be available to the former members of the
Intermediate Appellate Court no less than to the 20. State v. Diamond, 202 P. 988, 991.
members of the Court of Appeals.
21. Kelsen, General Theory of Law and State (1946),
It is a well-known canon of construction that p. 117.
apparently conflicting provisions should be
harmonized whenever possible. The ponencia would 22. H. Black, Handbook of American Constitutional
instead revoke Sec. 3. of BP 129 even though Sec. 2 Law II, 4th edition, 1927.
of EO 33 has not repealed but in fact re-enacted it. I
would reconcile the two provisions and give effect to 23. Political Rights as Political Questions. The
both. Paradox of Luther v. Borden, 100 Harvard Law
Review 1125, 1133 (1987).
Significantly, Sec. 8 of EO 33 provides that "the term
Intermediate Appellate Court . . . shall hereafter 24. Proclamation No. 3 (1986).
mean Court of Appeals." cralaw virt ua1aw lib rary

25. Ibid.
Narvasa, C.J., concurs.
26. Proclamation No. 1 (1986) and Proclamation No.
3 (1986).
Endnotes:
27. J. Bernas, Proclamation No. 3 with Notes by
Joaquin Bernas, S.J. 3 (1986).

1. Rollo, p. 10. 28. Address by U.P. President, now Senator Edgardo

Angara, Bishops-Businessmen’s Conference, March
2. B.P. Blg. 129 was passed by the Batasang 21, 1986, 27 U.P. Gazette 28, 29.
432 | PART 1 C O N S T I 1 FULLTEXT
29. Fernandez, Law and Polity: Towards a Systems
Concept of Legal Validity, 46 Phil. Law Journal, 390-
391 (1971).

30. Id., at 422.

31. Fernandez, supra note 29.

32. 1973 Constitution, Art. VII, Sec. 5.

BELLOSILLO, J., concurring: chanrob1e s virtu al 1aw lib rary

1. As prearranged by the Protocol Officer, the newly-

appointed Justices were assigned seats according to
seniority from left to right, so that when called to
take their oath they would only have to rise, move
forward, turn around, and face the President, as well
as their families and friends, for their oath-taking so
that seniority ranking would automatically be
observed in reverse, from right o left.

2. In En Banc sessions, even numbers are assigned

consecutively on one side and odd numbers on the
other side, and Justice Puno and myself were ranked
No. 26 and 24, respectively.

3. The letter-request of Justice Puno to this Court is

dated November 14, 1990, while the reply of
Executive Secretary Joker P. Arroyo which did not
grant the request, is dated September 17, 1986.

433 | PART 1 C O N S T I 1 FULLTEXT

 EN BANC
G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as
Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and
ERNESTO B. FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the
President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she
is the President. The warring personalities are
important enough but more transcendental are
the constitutional issues embedded on the
parties' dispute. While the significant issues are
many, the jugular issue involves the relationship
between the ruler and the ruled in a democracy,
Philippine style.
First, we take a view of the panorama of events
that precipitated the crisis in the office of the
President.
In the May 11, 1998 elections, petitioner Joseph
Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some ten (10) million
Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both
petitioner and the respondent were to serve a
six-year term commencing on June 30, 1998.
From the beginning of his term, however,
petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His
sharp descent from power started on October 4,
2000. Ilocos Sur Governor, Luis "Chavit"
Singson, a longtime friend of the petitioner, went
on air and accused the petitioner, his family and
friends of receiving millions of pesos
from jueteng lords.1
The exposẻ immediately ignited reactions of
rage. The next day, October 5, 2000, Senator
Teofisto Guingona, Jr., then the Senate Minority
Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused
the petitioner of receiving some P220 million
in jueteng money from Governor Singson from
November 1998 to August 2000. He also
charged that the petitioner took from Governor
Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin
Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the
Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The
House Committee on Public Order and Security,
then headed by Representative Roilo Golez,
decided to investigate the exposẻ of Governor
Singson. On the other hand, Representatives
Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled
the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in
behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the
moral authority to govern.3 Two days later or on
October 13, the Catholic Bishops Conference of
the Philippines joined the cry for the resignation
of the petitioner.4 Four days later, or on October
17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme
self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or
on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare
and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously
held on to his office and refused to resign.
The heat was on. On November 1, four (4)
senior economic advisers, members of the
Council of Senior Economic Advisers, resigned.
They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former
Senator Vicente Paterno and Washington
Sycip.8 On November 2, Secretary Mar Roxas II
also resigned from the Department of Trade and
Industry.9 On November 3, Senate President
Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives
defected from the ruling coalition, Lapian ng
Masang Pilipino.10
434 | PART 1 C O N S T I 1 FULLTEXT
The month of November ended with a big bang.
In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives,
or more than 1/3 of all the members of the
House of Representatives to the Senate. This
caused political convulsions in both houses of
Congress. Senator Drilon was replaced by
Senator Pimentel as Senate President. Speaker
Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate
formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their
oath as judges with Supreme Court Chief Justice
Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold
December. On December 7, the impeachment
trial started.14 The battle royale was fought by
some of the marquee names in the legal
profession. Standing as prosecutors were then
House Minority Floor Leader Feliciano Belmonte
and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios,
Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of
private prosecutors led by now Secretary of
Justice Hernando Perez and now Solicitor
General Simeon Marcelo. Serving as defense
counsel were former Chief Justice Andres
Narvasa, former Solicitor General and Secretary
of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy
Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and
during its course enjoyed the highest viewing
rating. Its high and low points were the constant
conversational piece of the chattering classes.
The dramatic point of the December hearings
was the testimony of Clarissa Ocampo, senior
vice president of Equitable-PCI Bank. She
testified that she was one foot away from
petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500
million investment agreement with their bank on
February 4, 2000.15
After the testimony of Ocampo, the
impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2,
2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo
Espiritu who served as petitioner's Secretary of
Finance took the witness stand. He alleged that
the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing
charges of insider trading.16 Then came the
fateful day of January 16, when by a vote of 11-
1017 the senator-judges ruled against the opening
of the second envelope which allegedly
contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private
prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was
met by a spontaneous outburst of anger that hit
the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine
and speeches full of sulphur were delivered
against the petitioner and the eleven (11)
senators.
On January 17, the public prosecutors submitted
a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with
the impeachment tribunal.19Senator Raul Roco
quickly moved for the indefinite postponement of
the impeachment proceedings until the House of
Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief
Justice Davide granted the motion.20
January 18 saw the high velocity intensification
of the call for petitioner's resignation. A 10-
kilometer line of people holding lighted candles
formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the
EDSA Shrine to symbolize the people's solidarity
in demanding petitioner's resignation. Students
and teachers walked out of their classes in
Metro Manila to show their concordance.
Speakers in the continuing rallies at the EDSA
Shrine, all masters of the physics of persuasion,
attracted more and more people.21
On January 19, the fall from power of the
petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo
Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had
defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where
he would not be a candidate. It did not diffuse
the growing crisis. At 3:00 p.m., Secretary of
National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed
services went to the EDSA Shrine.22 In the
presence of former Presidents Aquino and
Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on
behalf of Your Armed Forces, the 130,000
strong members of the Armed Forces, we wish
to announce that we are withdrawing our support
to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major
service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and
435 | PART 1 C O N S T I 1 FULLTEXT
bureau chiefs quickly resigned from their
posts.25 Rallies for the resignation of the
petitioner exploded in various parts of the
country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree
to the opening of the highly controversial second
envelope.26There was no turning back the tide.
The tide had become a tsunami.
January 20 turned to be the day of surrender. At
12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at
Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior
Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the Presidential
Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now
Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.27 Outside
the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and
caused minor injuries. The negotiations
consumed all morning until the news broke out
that Chief Justice Davide would administer the
oath to respondent Arroyo at high noon at the
EDSA Shrine.
At about 12:00 noon, Chief Justice Davide
administered the oath to respondent Arroyo as
President of the Philippines.28 At 2:30 p.m.,
petitioner and his family hurriedly left
Malacañang Palace.29 He issued the following
press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO
ESTRADA
At twelve o'clock noon today, Vice
President Gloria Macapagal-Arroyo took
her oath as President of the Republic of
the Philippines. While along with many
other legal minds of our country, I have
strong and serious doubts about the
legality and constitutionality of her
proclamation as President, I do not wish
to be a factor that will prevent the
restoration of unity and order in our civil
society.
It is for this reason that I now leave
Malacañang Palace, the seat of the
presidency of this country, for the sake
of peace and in order to begin the
healing process of our nation. I leave the
Palace of our people with gratitude for
the opportunities given to me for service
to our people. I will not shirk from any
future challenges that may come ahead
in the same service of our country.
I call on all my supporters and followers
to join me in to promotion of a
constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and
beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January
20, 2001, he signed the following letter: 31
"Sir:
By virtue of the provisions of Section 11,
Article VII of the Constitution, I am
hereby transmitting this declaration that I
am unable to exercise the powers and
duties of my office. By operation of law
and the Constitution, the Vice-President
shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker
Fuentebella at 8:30 a.m. on January
20.23 Another copy was transmitted to Senate
President Pimentel on the same day although it
was received only at 9:00 p.m.33
On January 22, the Monday after taking her
oath, respondent Arroyo immediately discharged
the powers the duties of the Presidency. On the
same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-
SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request
of Vice President Gloria Macapagal-
Arroyo to Take her Oath of Office as
President of the Republic of the
Philippines before the Chief Justice —
Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to
be sworn in as President of the Republic
of the Philippines, addressed to the
Chief Justice and confirmed by a letter
436 | PART 1 C O N S T I 1 FULLTEXT
 to the Court, dated January 20, 2001,
which request was treated as an
administrative matter, the court Resolve
unanimously to confirm the authority
given by the twelve (12) members of the
Court then present to the Chief Justice
on January 20, 2001 to administer the
oath of office of Vice President Gloria
Macapagal-Arroyo as President of the
Philippines, at noon of January 20,
2001. 1âwphi 1.nêt
This resolution is without prejudice to
the disposition of any justiciable case
that may be filed by a proper party."
Respondent Arroyo appointed members of her
Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly
followed. On January 23, in a reception or vin d'
honneur at Malacañang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats
recognized the government of respondent
Arroyo.35 US President George W. Bush gave
the respondent a telephone call from the White
House conveying US recognition of her
government.36
On January 24, Representative Feliciano
Belmonte was elected new Speaker of the
House of Representatives.37The House then
passed Resolution No. 175 "expressing the full
support of the House of Representatives to the
administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No.
176 "expressing the support of the House of
Representatives to the assumption into office by
Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines,
extending its congratulations and expressing its
support for her administration as a partner in the
attainment of the nation's goals under the
Constitution."39
On January 26, the respondent signed into law
the Solid Waste Management Act.40 A few days
later, she also signed into law the Political
Advertising ban and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated
Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the
Senate adopted Resolution No. 82 confirming
the nomination of Senator Guingona,
Jr.43Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmena voted "yes"
with reservations, citing as reason therefor the
pending challenge on the legitimacy of
respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta
and Robert Barbers were absent.44 The House of
Representatives also approved Senator
Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as
Vice President two (2) days later.46
On February 7, the Senate passed Resolution
No. 83 declaring that the impeachment court
is functus officio and has been
terminated.47 Senator Miriam Defensor-Santiago
stated "for the record" that she voted against the
closure of the impeachment court on the
grounds that the Senate had failed to decide on
the impeachment case and that the resolution
left open the question of whether Estrada was
still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse
Asia, President Arroyo's public acceptance
rating jacked up from 16% on January 20, 2001
to 38% on January 26, 2001.49 In another survey
conducted by the ABS-CBN/SWS from February
2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo
as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted
by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and
55% in Mindanao. Her trust rating increased to
52%. Her presidency is accepted by majorities in
all social classes: 58% in the ABC or middle-to-
upper classes, 64% in the D or mass class, and
54% among the E's or very poor class.50
After his fall from the pedestal of power, the
petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the
Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed
by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case
No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct, violation of the
Code of Conduct for Government Employees,
etc; (3) OMB Case No. 0-00-1755 filed by the
Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft
and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed
by Romeo Capulong, et al., on November 28,
2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5)
OMB Case No. 0-00-1757 filed by Leonard de
Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602,
PD 1829, PD 46, and RA 7080; and (6) OMB
437 | PART 1 C O N S T I 1 FULLTEXT
Case No. 0-00-1758 filed by Ernesto B.
Francisco, Jr. on December 4, 2000 for plunder,
graft and corruption.
A special panel of investigators was forthwith
created by the respondent Ombudsman to
investigate the charges against the petitioner. It
is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus
and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner
to file his counter-affidavit and the affidavits of
his witnesses as well as other supporting
documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On
February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a
prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman
from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756,
1757 and 1758 or in any other criminal complaint
that may be filed in his office, until after the term
of petitioner as President is over and only if
legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738
for Quo Warranto. He prayed for judgment
"confirming petitioner to be the lawful and
incumbent President of the Republic of the
Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to
have taken her oath as and to be holding the
Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution."
Acting on GR Nos. 146710-15, the Court, on the
same day, February 6, required the respondents
"to comment thereon within a non-extendible
period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation
of GR Nos. 146710-15 and GR No. 146738 and
the filing of the respondents' comments "on or
before 8:00 a.m. of February 15."
On February 15, the consolidated cases were
orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and
Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel,
former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that
they have "compromised themselves by
indicating that they have thrown their weight on
one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short
period of five (5) days to file their memoranda
and two (2) days to submit their simultaneous
replies.
In a resolution dated February 20, acting on the
urgent motion for copies of resolution and press
statement for "Gag Order" on respondent
Ombudsman filed by counsel for petitioner in
G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court
did not issue a resolution on January 20,
2001 declaring the office of the
President vacant and that neither did the
Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially
their counsel who are officers of the
Court under pain of being cited for
contempt to refrain from making any
comment or discussing in public the
merits of the cases at bar while they are
still pending decision by the Court, and
(3) to issue a 30-day status quo order
effective immediately enjoining the
respondent Ombudsman from resolving
or deciding the criminal cases pending
investigation in his office against
petitioner, Joseph E. Estrada and
subject of the cases at bar, it appearing
from news reports that the respondent
Ombudsman may immediately resolve
the cases against petitioner Joseph E.
Estrada seven (7) days after the hearing
held on February 15, 2001, which action
will make the cases at bar moot and
academic."53
The parties filed their replies on February 24. On
this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court
are:
I
Whether the petitions present a
justiciable controversy.
II
Assuming that the petitions present a
justiciable controversy, whether
petitioner Estrada is a President on
leave while respondent Arroyo is an
Acting President.
III
438 | PART 1 C O N S T I 1 FULLTEXT
 Whether conviction in the impeachment
proceedings is a condition precedent for
the criminal prosecution of petitioner
Estrada. In the negative and on the
assumption that petitioner is still
President, whether he is immune from
criminal prosecution.
IV
Whether the prosecution of petitioner
Estrada should be enjoined on the
ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I is one of 'political questions', not of
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue
that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this
Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the
"legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the
presidency through people power; that she has
already taken her oath as the 14th President of
the Republic; that she has exercised the powers
of the presidency and that she has been
recognized by foreign governments. They submit
that these realities on ground constitute the
political thicket, which the Court cannot enter.
We reject private respondents' submission. To
be sure, courts here and abroad, have tried to lift
the shroud on political question but its exact
latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the
political question doctrine which rests on the
principle of separation of powers and on
prudential considerations, continue to be refined
in the mills of constitutional law.55 In the United
States, the most authoritative guidelines to
determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962
case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any
case held to involve a political question
is found a textually demonstrable
constitutional commitment of the issue
to a coordinate political department or a
lack of judicially discoverable and
manageable standards for resolving it,
or the impossibility of deciding without
an initial policy determination of a kind
clearly for non-judicial discretion; or the
impossibility of a 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 multifarious
pronouncements by various
departments on question. Unless one of
these formulations is inextricable from
the case at bar, there should be no
dismissal for non justiciability on the
ground of a political question's
presence. The doctrine of which we treat
'political cases'."
In the Philippine setting, this Court has been
continuously confronted with cases calling for a
firmer delineation of the inner and outer
perimeters of a political question.57 Our leading
case is Tanada v. Cuenco,58 where this Court,
through former Chief Justice Roberto
Concepcion, held that 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 the government. It is concerned with issues
dependent upon the wisdom, not legality of a
particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the
political question doctrine when it expanded the
power of judicial review of this court not only to
settle actual controversies involving rights which
are legally demandable and enforceable but
also 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
government.59 Heretofore, the judiciary has
focused on the "thou shalt not's" of the
Constitution directed against the exercise of its
jurisdiction.60With the new provision, however,
courts are given a greater prerogative to
determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new
provision did not just grant the Court power
of doing nothing. In sync and symmetry with
this intent are other provisions of the 1987
Constitution trimming the so called political
thicket. Prominent of these provisions is section
18 of Article VII which empowers this Court in
limpid language to "x x x review, in an
appropriate proceeding filed by any citizen, the
439 | PART 1 C O N S T I 1 FULLTEXT
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ (of habeas corpus) or the
extension thereof x x x."
Respondents rely on the case of Lawyers
League for a Better Philippines and/or Oliver
A. Lozano v. President Corazon C. Aquino, et
al.61 and related cases62 to support their thesis
that since the cases at bar involve
the legitimacy of the government of
respondent Arroyo, ergo, they present a
political question. A more cerebral reading of the
cited cases will show that they are inapplicable.
In the cited cases, we held that the government
of former President Aquino was the result of
a successful revolution by the sovereign
people, albeit a peaceful one. No less than
the Freedom Constitution 63 declared that the
Aquino government was installed through a
direct exercise of the power of the Filipino
people "in defiance of the provisions of the
1973 Constitution, as amended." In is familiar
learning that the legitimacy of a government
sired by a successful revolution by people power
is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop.
In checkered contrast, the government of
respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA
Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically
swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she
is discharging the powers of the presidency
under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA
People Power I EDSA People Power II is
clear. EDSA I involves the exercise of
the people power of
revolution which overthrew the whole
government. EDSA II is an exercise of people
power of freedom of speech and freedom of
assembly to petition the government for
redress of grievances which only affected the
office of the President. EDSA I is extra
constitutional and the legitimacy of the new
government that resulted from it cannot be the
subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting
President that it caused and the succession of
the Vice President as President are subject to
judicial review. EDSA I presented a political
question; EDSA II involves legal questions. A
brief discourse on freedom of speech and of the
freedom of assembly to petition the government
for redress of grievance which are the cutting
edge of EDSA People Power II is not
inappropriate.
Freedom of speech and the right of assembly
are treasured by Filipinos. Denial of these rights
was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal,
raised the clarion call for the recognition of
freedom of the press of the Filipinos and
included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the
work of the revolutionary Congress in 1898,
provided in its Bill of Rights that Filipinos shall
not be deprived (1) of the right to freely express
his ideas or opinions, orally or in writing, through
the use of the press or other similar means; (2)
of the right of association for purposes of human
life and which are not contrary to public means;
and (3) of the right to send petitions to the
authorities, individually or collectively." These
fundamental rights were preserved when the
United States acquired jurisdiction over the
Philippines. In the Instruction to the Second
Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided
"that no law shall be passed abridging the
freedom of speech or of the press or of the rights
of the people to peaceably assemble and
petition the Government for redress of
grievances." The guaranty was carried over in
the Philippine Bill, the Act of Congress of July 1,
1902 and the Jones Law, the Act of Congress of
August 29, 1966.66
Thence on, the guaranty was set in stone in
our 1935 Constitution,67 and
the 197368 Constitution. These rights are now
safely ensconced in section 4, Article III of the
1987 Constitution, viz:
"Sec. 4. No law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right
of the people peaceably to assemble
and petition the government for redress
of grievances."
The indispensability of the people's freedom of
speech and of assembly to democracy is now
self-evident. The reasons are well put by
Emerson: first, freedom of expression is
essential as a means of assuring individual
fulfillment; second, it is an essential process for
advancing knowledge and discovering truth;
third, it is essential to provide for participation in
decision-making by all members of society; and
fourth, it is a method of achieving a more
adaptable and hence, a more stable community
of maintaining the precarious balance between
healthy cleavage and necessary
consensus."69 In this sense, freedom of
speech and of assembly provides a
framework in which the "conflict necessary
to the progress of a society can take place
440 | PART 1 C O N S T I 1 FULLTEXT
without destroying the society."70In Hague v.
Committee for Industrial Organization,71 this
function of free speech and assembly was
echoed in the amicus curiae filed by the Bill of
Rights Committee of the American Bar
Association which emphasized that "the basis of
the right of assembly is the substitution of the
expression of opinion and belief by talk rather
than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed
that "… it should be clear even to those with
intellectual deficits that when the sovereign
people assemble to petition for redress of
grievances, all should listen. For in a
democracy, it is the people who count; those
who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal
and not political questions. The principal issues
for resolution require the proper interpretation of
certain provisions in the 1987 Constitution,
notably section 1 of Article II,74 and section 875 of
Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The
issues likewise call for a ruling on the scope of
presidential immunity from suit. They also
involve the correct calibration of the right of
petitioner against prejudicial publicity. As early
as the 1803 case of Marbury v. Madison,77 the
doctrine has been laid down that "it is
emphatically the province and duty of the
judicial department to say what the law is . .
." Thus, respondent's in vocation of the doctrine
of political question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the
parties considered this issue as posing a political
question. Indeed, it involves a legal question
whose factual ingredient is determinable from
the records of the case and by resort to judicial
notice. Petitioner denies he resigned as
President or that he suffers from a permanent
disability. Hence, he submits that the office of
the President was not vacant when respondent
Arroyo took her oath as President.
The issue brings under the microscope the
meaning of section 8, Article VII of the
Constitution which provides:
"Sec. 8. In case of death, permanent
disability, removal from office or
resignation of the President, the Vice
President shall become the President to
serve the unexpired term. In case of
death, permanent disability, removal
from office, or resignation of both the
President and Vice President, the
President of the Senate or, in case of his
inability, the Speaker of the House of
Representatives, shall then act as
President until the President or Vice
President shall have been elected and
qualified.
x x x."
The issue then is whether the petitioner resigned
as President or should be considered resigned
as of January 20, 2001 when respondent took
her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction.
It is a factual question and its elements are
beyond quibble: there must be an intent to
resign and the intent must be coupled by
acts of relinquishment.78 The validity of a
resignation is not government by any formal
requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As
long as the resignation is clear, it must be given
legal effect.
In the cases at bar, the facts show that petitioner
did not write any formal letter of resignation
before he evacuated Malacañang Palace in the
afternoon of January 20, 2001 after the oath-
taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be
determined from his act and omissions before,
during and after January 20, 2001 or by
the totality of prior, contemporaneous and
posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner
resigned as President.
To appreciate the public pressure that led to the
resignation of the petitioner, it is important to
follow the succession of events after the exposẻ
of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed
revelations of petitioner's alleged misgovernance
in the Blue Ribbon investigation spiked the hate
against him. The Articles of Impeachment filed in
the House of Representatives which initially was
given a near cipher chance of succeeding
snowballed. In express speed, it gained the
signatures of 115 representatives or more than
1/3 of the House of Representatives. Soon,
petitioner's powerful political allies began
deserting him. Respondent Arroyo quit as
Secretary of Social Welfare. Senate President
Drilon and former Speaker Villar defected with
441 | PART 1 C O N S T I 1 FULLTEXT
47 representatives in tow. Then, his respected
senior economic advisers resigned together with
his Secretary of Trade and Industry.
As the political isolation of the petitioner
worsened, the people's call for his resignation
intensified. The call reached a new crescendo
when the eleven (11) members of the
impeachment tribunal refused to open the
second envelope. It sent the people to
paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was
swarming with people crying for redress of their
grievance. Their number grew exponentially.
Rallies and demonstration quickly spread to the
countryside like a brush fire.
As events approached January 20, we can have
an authoritative window on the state of mind of
the petitioner. The window is provided in the
"Final Days of Joseph Ejercito Estrada," the
diary of Executive Secretary Angara serialized in
the Philippine Daily Inquirer.79 The Angara
Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle
it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small
office at the presidential residence and
exclaimed: "Ed, seryoso na ito. Kumalas na si
Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)"80 An hour later or at 2:30 p.m., the
petitioner decided to call for a snap presidential
election and stressed he would not be a
candidate. The proposal for a snap election
for president in May where he would not be a
candidate is an indicium that petitioner had
intended to give up the presidency even at
that time. At 3:00 p.m., General Reyes joined
the sea of EDSA demonstrators demanding the
resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from
the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support
left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to
advise petitioner to consider the option
of "dignified exit or resignation."81 Petitioner
did not disagree but listened intently.82 The
sky was falling fast on the petitioner. At 9:30
p.m., Senator Pimentel repeated to the petitioner
the urgency of making a graceful and dignified
exit. He gave the proposal a sweetener by
saying that petitioner would be allowed to go
abroad with enough funds to support him and his
family.83 Significantly, the petitioner
expressed no objection to the suggestion for
a graceful and dignified exit but said he
would never leave the country.84 At 10:00
p.m., petitioner revealed to Secretary Angara,
"Ed, Angie (Reyes) guaranteed that I would
have five days to a week in the palace."85 This is
proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m.,
former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo
para magkaroon tayo ng (let's cooperate to
ensure a) peaceful and orderly transfer of
power."86 There was no defiance to the request.
Secretary Angara readily agreed. Again, we note
that at this stage, the problem was already
about a peaceful and orderly transfer of
power. The resignation of the petitioner was
implied.
The first negotiation for a peaceful and orderly
transfer of power immediately started at 12:20
a.m. of January 20, that fateful Saturday.
The negotiation was limited to three (3) points:
(1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the
safety of the petitioner and his family, and (3) the
agreement to open the second envelope to
vindicate the name of the petitioner.87 Again, we
note that the resignation of petitioner was
not a disputed point. The petitioner cannot
feign ignorance of this fact. According to
Secretary Angara, at 2:30 a.m., he briefed the
petitioner on the three points and the following
entry in the Angara Diary shows the reaction
of the petitioner, viz:
"x x x
I explain what happened during the first
round of negotiations.
The President immediately stresses
that he just wants the five-day period
promised by Reyes, as well as to open
the second envelope to clear his name.
If the envelope is opened, on
Monday, he says, he will leave by
Monday.
The President says. "Pagod na pagod
na ako. Ayoko na masyado nang
masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired.
I don't want any more of this – it's too
painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
I just want to clear my name, then I
will go."88
Again, this is high grade evidence that the
petitioner has resigned. The intent to resign is
442 | PART 1 C O N S T I 1 FULLTEXT
clear when he said "x x x Ayoko na masyado
nang masakit." "Ayoko na" are words of
resignation.
The second round of negotiation resumed at
7:30 a.m. According to the Angara Diary, the
following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert
Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this
round, I am accompanied by Dondon
Bagatsing and Macel.
Rene pulls out a document titled
"Negotiating Points." It reads:
'1. The President shall sign a resignation
document within the day, 20 January
2001, that will be effective on
Wednesday, 24 January 2001, on which
day the Vice President will assume the
Presidency of the Republic of the
Philippines.
2. Beginning to day, 20 January 2001,
the transition process for the assumption
of the new administration shall
commence, and persons designated by
the Vice President to various positions
and offices of the government shall start
their orientation activities in coordination
with the incumbent officials concerned.
3. The Armed Forces of the Philippines
and the Philippine National Police shall
function under the Vice President as
national military and police authority
effective immediately.
4. The Armed Forced of the Philippines,
through its Chief of Staff, shall
guarantee the security of the President
and his family as approved by the
national military and police authority
(Vice President).
5. It is to be noted that the Senate will
open the second envelope in connection
with the alleged savings account of the
President in the Equitable PCI Bank in
accordance with the rules of the Senate,
pursuant to the request to the Senate
President.
Our deal
We bring out, too, our discussion draft
which reads:
The undersigned parties, for and in
behalf of their respective principals,
agree and undertake as follows:
'1. A transition will occur and take place
on Wednesday, 24 January 2001, at
which time President Joseph Ejercito
Estrada will turn over the presidency to
Vice President Gloria Macapagal-
Arroyo.
'2. In return, President Estrada and his
families are guaranteed security and
safety of their person and property
throughout their natural lifetimes.
Likewise, President Estrada and his
families are guarantee freedom from
persecution or retaliation from
government and the private sector
throughout their natural lifetimes.
This commitment shall be guaranteed by
the Armed Forces of the Philippines
(AFP) through the Chief of Staff, as
approved by the national military and
police authorities – Vice President
(Macapagal).
'3. Both parties shall endeavor to ensure
that the Senate sitting as an
impeachment court will authorize the
opening of the second envelope in the
impeachment trial as proof that the
subject savings account does not belong
to President Estrada.
'4. During the five-day transition period
between 20 January 2001 and 24
January 2001 (the 'Transition Period"),
the incoming Cabinet members shall
receive an appropriate briefing from the
outgoing Cabinet officials as part of the
orientation program.
During the Transition Period, the AFP
and the Philippine National Police (PNP)
shall function Vice President
(Macapagal) as national military and
police authorities.
Both parties hereto agree that the AFP
chief of staff and PNP director general
shall obtain all the necessary signatures
as affixed to this agreement and insure
faithful implementation and observance
thereof.
443 | PART 1 C O N S T I 1 FULLTEXT
 Vice President Gloria Macapagal-Arroyo
shall issue a public statement in the
form and tenor provided for in "Annex A"
heretofore attached to this agreement."89
The second round of negotiation cements the
reading that the petitioner has resigned. It will be
noted that during this second round of
negotiation, the resignation of the petitioner was
again treated as a given fact. The only unsettled
points at that time were the measures to be
undertaken by the parties during and after the
transition period.
According to Secretary Angara, the draft
agreement, which was premised on the
resignation of the petitioner was further refined.
It was then, signed by their side and he was
ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United
Opposition. However, the signing by the party of
the respondent Arroyo was aborted by her oath-
taking. The Angara diary narrates the fateful
events, viz;90
"xxx
11:00 a.m. – Between General Reyes
and myself, there is a firm agreement on
the five points to effect a peaceful
transition. I can hear the general
clearing all these points with a group he
is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President
shall resign today, 20 January 2001,
which resignation shall be effective on
24 January 2001, on which day the Vice
President will assume the presidency of
the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the
assumption of the new administration
shall commence on 20 January 2001,
wherein persons designated by the Vice
President to various government
positions shall start orientation activities
with incumbent officials.
'3. The Armed Forces of the Philippines
through its Chief of Staff, shall
guarantee the safety and security of the
President and his families throughout
their natural lifetimes as approved by the
national military and police authority –
Vice President.
'4. The AFP and the Philippine National
Police (PNP) shall function under the
Vice President as national military and
police authorities.
'5. Both parties request the
impeachment court to open the second
envelope in the impeachment trial, the
contents of which shall be offered as
proof that the subject savings account
does not belong to the President.
The Vice President shall issue a public
statement in the form and tenor provided
for in Annex "B" heretofore attached to
this agreement.
11:20 a.m. – I am all set to fax General
Reyes and Nene Pimentel our
agreement, signed by our side and
awaiting the signature of the United
opposition.
And then it happens. General Reyes
calls me to say that the Supreme Court
has decided that Gloria Macapagal-
Arroyo is President and will be sworn in
at 12 noon.
'Bakit hindi naman kayo nakahintay?
Paano na ang agreement (why couldn't
you wait? What about the agreement)?' I
asked.
Reyes answered: 'Wala na, sir (it's over,
sir).'
I ask him: Di yung transition period,
moot and academic na?'
And General Reyes answers: ' Oo nga,
I delete na natin, sir (yes, we're deleting
the part).'
Contrary to subsequent reports, I do not
react and say that there was a double
cross.
But I immediately instruct Macel to
delete the first provision on resignation
since this matter is already moot and
academic. Within moments, Macel
erases the first provision and faxes the
documents, which have been signed by
444 | PART 1 C O N S T I 1 FULLTEXT
myself, Dondon and Macel, to Nene
Pimentel and General Reyes.
I direct Demaree Ravel to rush the
original document to General Reyes for
the signatures of the other side, as it is
important that the provisions on security,
at least, should be respected.
I then advise the President that the
Supreme Court has ruled that Chief
Justice Davide will administer the oath
to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as
president of the Republic of the
Philippines.
12:20 p.m. – The PSG distributes
firearms to some people inside the
compound.
The president is having his final meal at
the presidential Residence with the few
friends and Cabinet members who have
gathered.
By this time, demonstrators have
already broken down the first line of
defense at Mendiola. Only the PSG is
there to protect the Palace, since the
police and military have already
withdrawn their support for the
President.
1 p.m. – The President's personal staff
is rushing to pack as many of the
Estrada family's personal possessions
as they can.
During lunch, Ronnie Puno mentions
that the president needs to release a
final statement before leaving
Malacañang.
The statement reads: At twelve o'clock
noon today, Vice President Gloria
Macapagal-Arroyo took her oath as
President of the Republic of the
Philippines. While along with many other
legal minds of our country, I have strong
and serious doubts about the legality
and constitutionality of her proclamation
as President, I do not wish to be a factor
that will prevent the restoration of unity
and order in our civil society.
It is for this reason that I now leave
Malacañang Palace, the seat of the
presidency of this country, for the sake
of peace and in order to begin the
healing process of our nation. I leave the
Palace of our people with gratitude for
the opportunities given to me for service
to our people. I will not shirk from any
future challenges that may come ahead
in the same service of our country.
I call on all my supporters and followers
to join me in the promotion of a
constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and
our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the
petitioner cannot be doubted. It was confirmed
by his leaving Malacañang. In the press release
containing his final statement, (1) he
acknowledged the oath-taking of the respondent
as President of the Republic albeit with
reservation about its legality; (2) he emphasized
he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to
begin the healing process of our nation. He did
not say he was leaving the Palace due to any
kind inability and that he was going to re-assume
the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the
people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity
given him to serve the people as President (4)
he assured that he will not shirk from any future
challenge that may come ahead in the same
service of our country. Petitioner's reference is
to a future challenge after occupying the office of
the president which he has given up; and (5) he
called on his supporters to join him in the
promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity
could not be attained if he did not give up the
presidency. The press release was petitioner's
valedictory, his final act of farewell. His
presidency is now in the part tense.
It is, however, urged that the petitioner did not
resign but only took a temporary leave dated
January 20, 2001 of the petitioner sent to Senate
445 | PART 1 C O N S T I 1 FULLTEXT
President Pimentel and Speaker Fuentebella is
cited. Again, we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II,
Article VII of the Constitution, I am
hereby transmitting this declaration that I
am unable to exercise the powers and
duties of my office. By operation of law
and the Constitution, the Vice President
shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in
mystery.91 The pleadings filed by the petitioner in
the cases at bar did not discuss, may even
intimate, the circumstances that led to its
preparation. Neither did the counsel of the
petitioner reveal to the Court these
circumstances during the oral argument. It
strikes the Court as strange that the letter,
despite its legal value, was never referred to by
the petitioner during the week-long crisis. To be
sure, there was not the slightest hint of its
existence when he issued his final press
release. It was all too easy for him to tell the
Filipino people in his press release that he was
temporarily unable to govern and that he was
leaving the reins of government to respondent
Arroyo for the time bearing. Under any
circumstance, however, the mysterious letter
cannot negate the resignation of the petitioner. If
it was prepared before the press release of the
petitioner clearly as a later act. If, however, it
was prepared after the press released, still, it
commands scant legal significance. Petitioner's
resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical
will especially if the resignation is the result of
his reputation by the people. There is another
reason why this Court cannot given any legal
significance to petitioner's letter and this shall be
discussed in issue number III of this Decision.
After petitioner contended that as a matter of
fact he did not resign, he also argues that he
could not resign as a matter of law. He relies on
section 12 of RA No. 3019, otherwise known as
the Anti-graft and Corrupt Practices Act, which
allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be
allowed to resign or retire pending an
investigation, criminals or administrative,
or pending a prosecution against him,
for any offense under this Act or under
the provisions of the Revised Penal
Code on bribery."
A reading of the legislative history of RA No.
3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated form Senate
Bill No. 293. The original draft of the bill, when it
was submitted to the Senate, did not contain a
provision similar to section 12 of the law as it
now stands. However, in his sponsorship
speech, Senator Arturo Tolentino, the author of
the bill, "reserved to propose during the period of
amendments the inclusion of a provision to the
effect that no public official who is under
prosecution for any act of graft or corruption, or
is under administrative investigation, shall be
allowed to voluntarily resign or retire."92 During
the period of amendments, the following
provision was inserted as section 15:
"Sec. 15. Termination of office – No
public official shall be allowed to resign
or retire pending an investigation,
criminal or administrative, or pending a
prosecution against him, for any offense
under the Act or under the provisions of
the Revised Penal Code on bribery.
The separation or cessation of a public
official form office shall not be a bar to
his prosecution under this Act for an
offense committed during his
incumbency."93
The bill was vetoed by then President Carlos P.
Garcia who questioned the legality of the second
paragraph of the provision and insisted that the
President's immunity should extend after his
tenure.
Senate Bill No. 571, which was substantially
similar Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13
under the new bill, but the deliberations on this
particular provision mainly focused on the
immunity of the President, which was one of the
reasons for the veto of the original bill. There
was hardly any debate on the prohibition against
the resignation or retirement of a public official
with pending criminal and administrative cases
against him. Be that as it may, the intent of the
law ought to be obvious. It is to prevent the act
of resignation or retirement from being used by a
public official as a protective shield to stop the
investigation of a pending criminal or
administrative case against him and to prevent
his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal
Code. To be sure, no person can be compelled
to render service for that would be a violation of
his constitutional right.94 A public official has the
right not to serve if he really wants to retire or
resign. Nevertheless, if at the time he resigns or
retires, a public official is facing administrative or
446 | PART 1 C O N S T I 1 FULLTEXT
criminal investigation or prosecution, such
resignation or retirement will not cause the
dismissal of the criminal or administrative
proceedings against him. He cannot use his
resignation or retirement to avoid prosecution.
There is another reason why petitioner's
contention should be rejected. In the cases at
bar, the records show that when petitioner
resigned on January 20, 2001, the cases filed
against him before the Ombudsman were OMB
Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-
00-1757 and 0-00-1758. While these cases have
been filed, the respondent Ombudsman
refrained from conducting the preliminary
investigation of the petitioner for the reason that
as the sitting President then, petitioner was
immune from suit. Technically, the said cases
cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them.
Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of
cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like
the immunity from suit of a sitting President.
Petitioner contends that the impeachment
proceeding is an administrative investigation
that, under section 12 of RA 3019, bars him from
resigning. We hold otherwise. The exact nature
of an impeachment proceeding is debatable. But
even assuming arguendo that it is an
administrative proceeding, it can not be
considered pending at the time petitioner
resigned because the process already broke
down when a majority of the senator-judges
voted against the opening of the second
envelope, the public and private prosecutors
walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and
the proceedings were postponed indefinitely.
There was, in effect, no impeachment case
pending against petitioner when he resigned.
III
Whether or not the petitioner Is only
temporarily unable to Act as President.
We shall now tackle the contention of the
petitioner that he is merely temporarily unable to
perform the powers and duties of the
presidency, and hence is a President on leave.
As aforestated, the inability claim is contained in
the January 20, 2001 letter of petitioner sent on
the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as
Vice President has no power to adjudge the
inability of the petitioner to discharge the powers
and duties of the presidency. His significant
submittal is that "Congress has the ultimate
authority under the Constitution to determine
whether the President is incapable of performing
his functions in the manner provided for in
section 11 of article VII."95 This contention is
the centerpiece of petitioner's stance that he
is a President on leave and respondent Arroyo is
only an Acting President.
An examination of section 11, Article VII is in
order. It provides:
"SEC. 11. Whenever the President
transmits to the President of the Senate
and the Speaker of the House of
Representatives his written declaration
that he is unable to discharge the
powers and duties of his office, and until
he transmits to them a written
declaration to the contrary, such powers
and duties shall be discharged by the
Vice-President as Acting President.
Whenever a majority of all the Members
of the Cabinet transmit to the President
of the Senate and to the Speaker of the
House of Representatives their written
declaration that the President is unable
to discharge the powers and duties of
his office, the Vice-President shall
immediately assume the powers and
duties of the office as Acting President.
Thereafter, when the President
transmits to the President of the Senate
and to the Speaker of the House of
Representatives his written declaration
that no inability exists, he shall
reassume the powers and duties of his
office. Meanwhile, should a majority of
all the Members of the Cabinet transmit
within five days to the President of the
Senate and to the Speaker of the House
of Representatives their written
declaration that the President is unable
to discharge the powers and duties of
his office, the Congress shall decide the
issue. For that purpose, the Congress
shall convene, if it is not in session,
within forty-eight hours, in accordance
with its rules and without need of call.
If the Congress, within ten days after
receipt of the last written declaration, or,
if not in session, within twelve days after
it is required to assemble, determines by
a two-thirds vote of both Houses, voting
separately, that the President is unable
447 | PART 1 C O N S T I 1 FULLTEXT
 to discharge the powers and duties of
his office, the Vice-President shall act as
President; otherwise, the President shall
continue exercising the powers and
duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001,
sent the above letter claiming
inability to the Senate President
and Speaker of the House;
2. Unaware of the letter,
respondent Arroyo took her oath
of office as President on
January 20, 2001 at about 12:30
p.m.;
3. Despite receipt of the letter, the
House of Representatives
passed on January 24, 2001
House Resolution No. 175;96
On the same date, the House of the
Representatives passed House Resolution No.
17697 which states:
"RESOLUTION EXPRESSING THE
SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE
ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT
FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF
THE NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the
people's loss of confidence on the ability
of former President Joseph Ejercito
Estrada to effectively govern, the Armed
Forces of the Philippines, the Philippine
National Police and majority of his
cabinet had withdrawn support from him;
WHEREAS, upon authority of an en
banc resolution of the Supreme Court,
Vice President Gloria Macapagal-Arroyo
was sworn in as President of the
Philippines on 20 January 2001 before
Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter,
members of the international community
had extended their recognition to Her
Excellency, Gloria Macapagal-Arroyo as
President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President
Gloria Macapagal-Arroyo has espoused
a policy of national healing and
reconciliation with justice for the purpose
of national unity and development;
WHEREAS, it is axiomatic that the
obligations of the government cannot be
achieved if it is divided, thus by reason
of the constitutional duty of the House of
Representatives as an institution and
that of the individual members thereof of
fealty to the supreme will of the people,
the House of Representatives must
ensure to the people a stable, continuing
government and therefore must remove
all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of
the House of Representatives to exert
all efforts to unify the nation, to eliminate
fractious tension, to heal social and
political wounds, and to be an
instrument of national reconciliation and
solidarity as it is a direct representative
of the various segments of the whole
nation;
WHEREAS, without surrending its
independence, it is vital for the
attainment of all the foregoing, for the
House of Representatives to extend its
support and collaboration to the
administration of Her Excellency,
President Gloria Macapagal-Arroyo, and
to be a constructive partner in nation-
building, the national interest demanding
no less: Now, therefore, be it
Resolved by the House of
Representatives, To express its support
to the assumption into office by Vice
President Gloria Macapagal-Arroyo as
President of the Republic of the
Philippines, to extend its congratulations
and to express its support for her
administration as a partner in the
attainment of the Nation's goals under
the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
448 | PART 1 C O N S T I 1 FULLTEXT
 This Resolution was adopted by the
House of Representatives on January
24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the
Representatives passed House Resolution No.
17898 which states:
"RESOLUTION CONFIRMING
PRESIDENT GLORIA MACAPAGAL-
ARROYO'S NOMINATION OF
SENATOR TEOFISTO T. GUINGONA,
JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the
Office of the Vice President due to the
assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9,
Article VII of the Constitution, the
President in the event of such vacancy
shall nominate a Vice President from
among the members of the Senate and
the House of Representatives who shall
assume office upon confirmation by a
majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President
Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T.
Guingona Jr., to the position of Vice
President of the Republic of the
Philippines;
WHEREAS, Senator Teofisto T.
Guingona Jr., is a public servant
endowed with integrity, competence and
courage; who has served the Filipino
people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T.
Guingona, Jr. possesses sterling
qualities of true statesmanship, having
served the government in various
capacities, among others, as Delegate
to the Constitutional Convention,
Chairman of the Commission on Audit,
Executive Secretary, Secretary of
Justice, Senator of the Philippines –
qualities which merit his nomination to
the position of Vice President of the
Republic: Now, therefore, be it
Resolved as it is hereby resolved by the
House of Representatives, That the
House of Representatives confirms the
nomination of Senator Teofisto T.
Guingona, Jr. as the Vice President of
the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the
House of Representatives on February
7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's
letter claiming inability, some twelve (12)
members of the Senate signed the
following:
"RESOLUTION
WHEREAS, the recent transition in
government offers the nation an
opportunity for meaningful change and
challenge;
WHEREAS, to attain desired changes
and overcome awesome challenges the
nation needs unity of purpose and
resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the
Philippines has been the forum for vital
legislative measures in unity despite
diversities in perspectives;
WHEREFORE, we recognize and
express support to the new government
of President Gloria Macapagal-Arroyo
and resolve to discharge and overcome
the nation's challenges." 99
On February 7, the Senate also
passed Senate Resolution No.
82100 which states:
"RESOLUTION CONFIRMING
PRESIDENT GLORIA MACAPAGAL
ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES
449 | PART 1 C O N S T I 1 FULLTEXT
WHEREAS, there is vacancy in the
Office of the Vice President due to the
assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9
Article VII of the Constitution, the
President in the event of such vacancy
shall nominate a Vice President from
among the members of the Senate and
the House of Representatives who shall
assume office upon confirmation by a
majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President
Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T.
Guingona, Jr. to the position of Vice
President of the Republic of the
Philippines;
WHEREAS, Sen. Teofisto T. Guingona,
Jr. is a public servant endowed with
integrity, competence and courage; who
has served the Filipino people with
dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona,
Jr. possesses sterling qualities of true
statemanship, having served the
government in various capacities,
among others, as Delegate to the
Constitutional Convention, Chairman of
the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator
of the land - which qualities merit his
nomination to the position of Vice
President of the Republic: Now,
therefore, be it
Resolved, as it is hereby resolved, That
the Senate confirm the nomination of
Sen. Teofisto T. Guingona, Jr. as Vice
President of the Republic of the
Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the
Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7,
the Senate likewise passed Senate
Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT
THE IMPEACHMENT COURT
IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That
the Senate recognize that the
Impeachment Court is functus officioand
has been terminated.
Resolved, further, That the Journals of
the Impeachment Court on Monday,
January 15, Tuesday, January 16 and
Wednesday, January 17, 2001 be
considered approved.
Resolved, further, That the records of
the Impeachment Court including the
"second envelope" be transferred to the
Archives of the Senate for proper
safekeeping and preservation in
accordance with the Rules of the
Senate. Disposition and retrieval thereof
shall be made only upon written
approval of the Senate president.
Resolved, finally. That all parties
concerned be furnished copies of this
Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the
Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also
passed Resolution No. 84 "certifying to the
existence of vacancy in the Senate and calling
on the COMELEC to fill up such vacancy
through election to be held simultaneously with
the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth
(13th) highest number of votes shall serve only
for the unexpired term of Senator Teofisto T.
Guingona, Jr.'
(6) Both houses of Congress started
sending bills to be signed into law by
respondent Arroyo as President.
450 | PART 1 C O N S T I 1 FULLTEXT
(7) Despite the lapse of time and still without any
functioning Cabinet, without any recognition from
any sector of government, and without any
support from the Armed Forces of the
Philippines and the Philippine National Police,
the petitioner continues to claim that his inability
to govern is only momentary.
What leaps to the eye from these irrefutable
facts is that both houses of Congress have
recognized respondent Arroyo as the
President. Implicitly clear in that recognition
is the premise that the inability of petitioner
Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of
inability.
The question is whether this Court has
jurisdiction to review the claim of temporary
inability of petitioner Estrada and
thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as
president of the Philippines. Following Tañada
v. Cuenco,102 we hold that this Court cannot
exercise its judicial power or this is an issue "in
regard to which full discretionary authority has
been delegated to the Legislative xxx branch of
the government." Or to use the language
in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable
and manageable standards for resolving it."
Clearly, the Court cannot pass upon petitioner's
claim of inability to discharge the power and
duties of the presidency. The question is
political in nature and addressed solely to
Congress by constitutional fiat. It is a political
issue, which cannot be decided by this Court
without transgressing the principle of separation
of powers.
In fine, even if the petitioner can prove that
he did not resign, still, he cannot
successfully claim that he is a President on
leave on the ground that he is merely unable
to govern temporarily. That claim has been
laid to rest by Congress and the decision
that respondent Arroyo is the de jure,
president made by a co-equal branch of
government cannot be reviewed by this
Court.
IV
Whether or not the petitioner enjoys
immunity from suit.
Assuming he enjoys immunity, the extent of
the immunity
Petitioner Estrada makes two submissions: first,
the cases filed against him before the
respondent Ombudsman should be prohibited
because he has not been convicted in the
impeachment proceedings against him;
and second, he enjoys immunity from all kinds
of suit, whether criminal or civil.
Before resolving petitioner's contentions, a
revisit of our legal history executive immunity will
be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case
law. In the 1910 case of Forbes, etc. vs.
Chuoco Tiaco and Crosfield,104 the respondent
Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the
Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the
Secret Service of the City of Manila,
respectively, for damages for allegedly
conspiring to deport him to China. In granting a
writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:
" The principle of nonliability, as herein
enunciated, does not mean that the
judiciary has no authority to touch the
acts of the Governor-General; that he
may, under cover of his office, do what
he will, unimpeded and unrestrained.
Such a construction would mean that
tyranny, under the guise of the
execution of the law, could walk
defiantly abroad, destroying rights of
person and of property, wholly free from
interference of courts or legislatures.
This does not mean, either that a person
injured by the executive authority by an
act unjustifiable under the law has n
remedy, but must submit in silence. On
the contrary, it means, simply, that the
governors-general, like the judges if the
courts and the members of the
Legislature, may not be personally
mulcted in civil damages for the
consequences of an act executed in the
performance of his official duties. The
judiciary has full power to, and will,
when the mater is properly presented to
it and the occasion justly warrants it,
declare an act of the Governor-General
illegal and void and place as nearly as
possible in status quo any person who
has been deprived his liberty or his
property by such act. This remedy is
assured to every person, however
humble or of whatever country, when his
personal or property rights have been
invaded, even by the highest authority of
the state. The thing which the judiciary
can not do is mulct the Governor-
451 | PART 1 C O N S T I 1 FULLTEXT
 General personally in damages which
result from the performance of his
official duty, any more than it can a
member of the Philippine Commission of
the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability
mean that the chief executive may not
be personally sued at all in relation to
acts which he claims to perform as such
official. On the contrary, it clearly
appears from the discussion heretofore
had, particularly that portion which
touched the liability of judges and drew
an analogy between such liability and
that of the Governor-General, that the
latter is liable when he acts in a case so
plainly outside of his power and
authority that he can not be said to have
exercised discretion in determining
whether or not he had the right to act.
What is held here is that he will be
protected from personal liability for
damages not only when he acts within
his authority, but also when he is without
authority, provided he actually used
discretion and judgement, that is, the
judicial faculty, in determining whether
he had authority to act or not. In other
words, in determining the question of his
authority. If he decide wrongly, he is still
protected provided the question of his
authority was one over which two men,
reasonably qualified for that position,
might honestly differ; but he s not
protected if the lack of authority to act is
so plain that two such men could not
honestly differ over its determination. In
such case, be acts, not as Governor-
General but as a private individual, and
as such must answer for the
consequences of his act."
Mr. Justice Johnson underscored the
consequences if the Chief Executive was not
granted immunity from suit, viz"xxx. Action upon
important matters of state delayed; the time and
substance of the chief executive spent in
wrangling litigation; disrespect engendered for
the person of one of the highest officials of the
state and for the office he occupies; a tendency
to unrest and disorder resulting in a way, in
distrust as to the integrity of government itself."105
Our 1935 Constitution took effect but it did not
contain any specific provision on executive
immunity. Then came the tumult of the martial
law years under the late President Ferdinand E.
Marcos and the 1973 Constitution was born. In
1981, it was amended and one of the
amendments involved executive immunity.
Section 17, Article VII stated:
"The President shall be immune from
suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done
by him or by others pursuant to his
specific orders during his tenure.
The immunities herein provided shall
apply to the incumbent President
referred to in Article XVII of this
Constitution.
In his second Vicente G. Sinco professional
Chair lecture entitled, "Presidential Immunity and
All The King's Men: The Law of Privilege As a
Defense To Actions For Damages,"106 petitioner's
learned counsel, former Dean of the UP College
of Law, Atty. Pacificao Agabin, brightened the
modifications effected by this constitutional
amendment on the existing law on executive
privilege. To quote his disquisition:
"In the Philippines, though, we sought to
do the Americans one better by
enlarging and fortifying the absolute
immunity concept. First, we extended it
to shield the President not only form civil
claims but also from criminal cases and
other claims. Second, we enlarged its
scope so that it would cover even acts of
the President outside the scope of
official duties. And third, we broadened
its coverage so as to include not only
the President but also other persons, be
they government officials or private
individuals, who acted upon orders of
the President. It can be said that at that
point most of us were suffering from
AIDS (or absolute immunity defense
syndrome)."
The Opposition in the then Batasan Pambansa
sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament,
now Secretary of Finance, Alberto Romulo, who
argued that the after incumbency immunity
granted to President Marcos violated the
principle that a public office is a public trust. He
denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The
effort failed.
The 1973 Constitution ceased to exist when
President Marcos was ousted from office by the
People Power revolution in 1986. When the
1987 Constitution was crafted, its framers did
not reenact the executive immunity provision of
452 | PART 1 C O N S T I 1 FULLTEXT
the 1973 Constitution. The following explanation
was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the
Committee's omitting in the draft
proposal the immunity provision for the
President. I agree with Commissioner
Nolledo that the Committee did very well
in striking out second sentence, at the
very least, of the original provision on
immunity from suit under the 1973
Constitution. But would the Committee
members not agree to a restoration of at
least the first sentence that the
President shall be immune from suit
during his tenure, considering that if we
do not provide him that kind of an
immunity, he might be spending all his
time facing litigation's, as the President-
in-exile in Hawaii is now facing
litigation's almost daily?
Fr. Bernas. The reason for the omission
is that we consider it understood in
present jurisprudence that during his
tenure he is immune from suit.
Mr. Suarez. So there is no need to
express it here.
Fr. Bernas. There is no need. It was that
way before. The only innovation made
by the 1973 Constitution was to make
that explicit and to add other things.
Mr. Suarez. On that understanding, I will
not press for any more query, Madam
President.
I think the Commissioner for the
clarifications."
We shall now rule on the contentions of
petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the
reason that he must first be convicted in the
impeachment proceedings. The impeachment
trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events
that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since,
the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he
should first be impeached and then convicted
before he can be prosecuted. The plea if
granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to
commend itself for it will place him in a better
situation than a non-sitting President who has
not been subjected to impeachment proceedings
and yet can be the object of a criminal
prosecution. To be sure, the debates in the
Constitutional Commission make it clear that
when impeachment proceedings have become
moot due to the resignation of the President, the
proper criminal and civil cases may already be
filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an
impeachment proceeding has been filed
against the President, for example, and
the President resigns before judgement
of conviction has been rendered by the
impeachment court or by the body, how
does it affect the impeachment
proceeding? Will it be necessarily
dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office,
then his resignation would render the
case moot and academic. However, as
the provision says, the criminal and civil
aspects of it may continue in the
ordinary courts."
This is in accord with our ruling In Re: Saturnino
Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court
during the period of their incumbency and
tenure" but not beyond. Considering the peculiar
circumstance that the impeachment process
against the petitioner has been aborted and
thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua
non to his criminal prosecution before the
Ombudsman that he be convicted in the
impeachment proceedings. His reliance on the
case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a
different factual milieu.
We now come to the scope of immunity that can
be claimed by petitioner as a non-sitting
President. The cases filed against petitioner
Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no
stretch of the imagination can these crimes,
especially plunder which carries the death
penalty, be covered by the alleged mantle of
immunity of a non-sitting president. Petitioner
cannot cite any decision of this Court licensing
the President to commit criminal acts and
wrapping him with post-tenure immunity from
453 | PART 1 C O N S T I 1 FULLTEXT
liability. It will be anomalous to hold that
immunity is an inoculation from liability for
unlawful acts and conditions. The rule is that
unlawful acts of public officials are not acts of
the State and the officer who acts illegally is not
acting as such but stands in the same footing as
any trespasser.114
Indeed, critical reading of current literature on
executive immunity will reveal a judicial
disinclination to expand the privilege especially
when it impedes the search for truth or impairs
the vindication of a right. In the 1974 case of US
v. Nixon,115 US President Richard Nixon, a sitting
President, was subpoenaed to produce certain
recordings and documents relating to his
conversations with aids and advisers. Seven
advisers of President Nixon's associates were
facing charges of conspiracy to obstruct Justice
and other offenses, which were committed in a
burglary of the Democratic National
Headquarters in Washington's Watergate Hotel
during the 972 presidential campaign. President
Nixon himself was named an unindicted co-
conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the
President was not subject to judicial process and
that he should first be impeached and removed
from office before he could be made amenable
to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that
"when the ground for asserting privilege as to
subpoenaed materials sought for use in a
criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over
the fundamental demands of due process of law
in the fair administration of criminal justice." In
the 1982 case of Nixon v. Fitzgerald,116 the US
Supreme Court further held that the immunity of
the president from civil damages covers only
"official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the
case of Clinton v. Jones117 where it held that the
US President's immunity from suits for money
damages arising out of their official acts is
inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to
appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great
themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state
policy that "the State shall maintain honesty and
integrity in the public service and take positive
and effective measures against graft and
corruptio."119 it ordained that "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."120 It set the rule that 'the right of the State
to recover properties unlawfully acquired by
public officials or employees, from them or from
their nominees or transferees, shall not be
barred by prescription, latches or estoppel."121 It
maintained the Sandiganbayan as an anti-graft
court.122 It created the office of the Ombudsman
and endowed it with enormous powers, among
which is to "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."123 The Office of
the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be
devalued if we sustain petitioner's claim that a
non-sitting president enjoys immunity from suit
for criminal acts committed during his
incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial
publicity
Petitioner also contends that the respondent
Ombudsman should be stopped from conducting
the investigation of the cases filed against him
due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent
Ombudsman has developed bias and is all set
file the criminal cases violation of his right to due
process.
There are two (2) principal legal and
philosophical schools of thought on how to deal
with the rain of unrestrained publicity during the
investigation and trial of high profile
cases.125 The British approach the problem with
the presumption that publicity will prejudice a
jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to
fair trial suffers a threat.126 The American
approach is different. US courts assume a
skeptical approach about the potential effect of
pervasive publicity on the right of an accused to
a fair trial. They have developed different strains
of tests to resolve this issue, i.e., substantial;
probability of irreparable harm, strong likelihood,
clear and present danger, etc.
This is not the first time the issue of trial by
publicity has been raised in this Court to stop the
trials or annul convictions in high profile criminal
cases.127 In People vs. Teehankee, Jr.,128 later
reiterated in the case of Larranaga vs. court of
Appeals, et al.,129 we laid down the doctrine that:
454 | PART 1 C O N S T I 1 FULLTEXT
"We cannot sustain appellant's claim
that he was denied the right to impartial
trial due to prejudicial publicity. It is true
that the print and broadcast media gave
the case at bar pervasive publicity, just
like all high profile and high stake
criminal trials. Then and now, we rule
that the right of an accused to a fair trial
is not incompatible to a free press. To
be sure, responsible reporting enhances
accused's right to a fair trial for, as well
pointed out, a responsible press has
always been regarded as the criminal
field xxx. The press does not simply
publish information about trials but
guards against the miscarriage of justice
by subjecting the police, prosecutors,
and judicial processes to extensive
public scrutiny and criticism.
Pervasive publicity is not per se
prejudicial to the right of an accused to
fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-
to-gavel coverage does not by itself
prove that the publicity so permeated
the mind of the trial judge and impaired
his impartiality. For one, it is impossible
to seal the minds of members of the
bench from pre-trial and other off-court
publicity of sensational criminal cases.
The state of the art of our
communication system brings news as
they happen straight to our breakfast
tables and right to our bedrooms. These
news form part of our everyday menu of
the facts and fictions of life. For another,
our idea of a fair and impartial judge is
not that of a hermit who is out of touch
with the world. We have not installed the
jury system whose members are overly
protected from publicity lest they lose
there impartially. xxx xxx xxx. Our
judges are learned in the law and
trained to disregard off-court evidence
and on-camera performances of parties
to litigation. Their mere exposure to
publications and publicity stunts does
not per se fatally infect their impartiality.
At best, appellant can only conjure
possibility of prejudice on the part of the
trial judge due to the barrage of publicity
that characterized the investigation and
trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this
standard of possibility of prejudice and
adopted the test of actual prejudice as
we ruled that to warrant a finding of
prejudicial publicity, there must be
allegation and proof that the judges
have been unduly influenced, not simply
that they might be, by the barrage of
publicity. In the case at a bar, the
records do not show that the trial judge
developed actual bias against appellants
as a consequence of the extensive
media coverage of the pre-trial and trial
of his case. The totality of circumstances
of the case does not prove that the trial
judge acquired a fixed opinion as a
result of prejudicial publicity, which is
incapable of change even by evidence
presented during the trial. Appellant has
the burden to prove this actual bias and
he has not discharged the burden.'
We expounded further on this doctrine in the
subsequent case of Webb vs. Hon. Raul de
Leon, etc.130 and its companion cases, viz:
"Again petitioners raise the effect of
prejudicial publicity on their right to due
process while undergoing preliminary
investigation. We find no procedural
impediment to its early invocation
considering the substantial risk to their
liberty while undergoing a preliminary
investigation.
xxx
The democratic settings, media
coverage of trials of sensational cases
cannot be avoided and oftentimes, its
excessiveness has been aggravated by
kinetic developments in the
telecommunications industry. For sure,
few cases can match the high volume
and high velocity of publicity that
attended the preliminary investigation of
the case at bar. Our daily diet of facts
and fiction about the case continues
unabated even today. Commentators
still bombard the public with views not
too many of which are sober and
sublime. Indeed, even the principal
actors in the case – the NBI, the
respondents, their lawyers and their
sympathizers have participated in this
media blitz. The possibility of media
abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be
completely closed to the press and
public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the
evolution of the criminal trial in
455 | PART 1 C O N S T I 1 FULLTEXT
 Anglo-American justice
demonstrates conclusively that
at the time this Nation's organic
laws were adopted, criminal
trials both here and in England
had long been presumptively
open, thus giving assurance that
the proceedings were
conducted fairly to all concerned
and discouraging perjury, the
misconduct of participants, or
decisions based on secret bias
or partiality. In addition, the
significant community
therapeutic value of public trials
was recognized when a
shocking crime occurs a
community reaction of outrage
and public protest often follows,
and thereafter the open
processes of justice serve an
important prophylactic purpose,
providing an outlet for
community concern, hostility
and emotion. To work
effectively, it is important that
society's criminal process satisfy
the appearance of justice,' Offutt
v. United States, 348 US 11, 14,
99 L ED 11, 75 S Ct 11, which
can best be provided by
allowing people to observe such
process. From this unbroken,
uncontradicted history,
supported by reasons as valid
today as in centuries past, it
must be concluded that a
presumption of openness
inheres in the very nature of a
criminal trial under this Nation's
system of justice, Cf., e,g.,
Levine v. United States, 362 US
610, 4 L Ed 2d 989, 80 S Ct
1038.
b. The freedoms of speech. Press
and assembly, expressly
guaranteed by the First
Amendment, share a common
core purpose of assuring
freedom of communication on
matters relating to the
functioning of government. In
guaranteeing freedom such as
those of speech and press, the
First Amendment can be read
as protecting the right of
everyone to attend trials so as
give meaning to those explicit
guarantees; the First
Amendment right to receive
information and ideas means, in
the context of trials, that the
guarantees of speech and
press, standing alone, prohibit
government from summarily
closing courtroom doors which
had long been open to the
public at the time the First
Amendment was adopted.
Moreover, the right of assembly
is also relevant, having been
regarded not only as an
independent right but also as a
catalyst to augment the free
exercise of the other First
Amendment rights with which
the draftsmen deliberately linked
it. A trial courtroom is a public
place where the people
generally and representatives of
the media have a right to be
present, and where their
presence historically has been
thought to enhance the integrity
and quality of what takes place.
c. Even though the Constitution
contains no provision which be
its terms guarantees to the
public the right to attend criminal
trials, various fundamental
rights, not expressly
guaranteed, have been
recognized as indispensable to
the enjoyment of enumerated
rights. The right to attend
criminal trial is implicit in the
guarantees of the First
Amendment: without the
freedom to attend such trials,
which people have exercised for
centuries, important aspects of
freedom of speech and of the
press be eviscerated.
Be that as it may, we recognize that
pervasive and prejudicial publicity under
certain circumstances can deprive an
accused of his due process right to fair
trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant
a finding of prejudicial publicity there
must be allegation and proof that the
judges have been unduly influenced, not
simply that they might be, by the
barrage of publicity. In the case at bar,
we find nothing in the records that will
prove that the tone and content of the
publicity that attended the investigation
of petitioners fatally infected the fairness
and impartiality of the DOJ Panel.
Petitioners cannot just rely on the
subliminal effects of publicity on the
456 | PART 1 C O N S T I 1 FULLTEXT
 sense of fairness of the DOJ Panel, for
these are basically unbeknown and
beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief
State Prosecutor and Senior State
Prosecutors. Their long experience in
criminal investigation is a factor to
consider in determining whether they
can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia
of bias for it does not appear that they
considered any extra-record evidence
except evidence properly adduced by
the parties. The length of time the
investigation was conducted despite its
summary nature and the generosity with
which they accommodated the discovery
motions of petitioners speak well of their
fairness. At no instance, we note, did
petitioners seek the disqualification of
any member of the DOJ Panel on the
ground of bias resulting from their
bombardment of prejudicial publicity."
(emphasis supplied)
Applying the above ruling, we hold that there is
not enough evidence to warrant this Court to
enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile
headlines to discharge his burden of proof.131 He
needs to show more weighty social science
evidence to successfully prove the impaired
capacity of a judge to render a bias-free
decision. Well to note, the cases against the
petitioner are still undergoing preliminary
investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No
allegation whatsoever has been made by the
petitioner that the minds of the members of this
special panel have already been infected by bias
because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to
come out with its findings and the Court cannot
second guess whether its recommendation will
be unfavorable to the petitioner.1âw phi1.nêt
The records show that petitioner has instead
charged respondent Ombudsman himself with
bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced
by the barrage of slanted news reports, and he
has buckled to the threats and pressures
directed at him by the mobs."132 News reports
have also been quoted to establish that the
respondent Ombudsman has already prejudged
the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner
will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by
the petitioner is insubstantial. The accuracy of
the news reports referred to by the petitioner
cannot be the subject of judicial notice by this
Court especially in light of the denials of the
respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and
regularity in the performance of official duty to
which he is entitled. Nor can we adopt the
theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent
Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure,
give investigation prosecutors the independence
to make their own findings and
recommendations albeit they are reviewable by
their superiors.134 They can be reversed but they
can not be compelled cases which they believe
deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking
slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against
the petitioner and the latter believes that the
findings of probable cause against him is the
result of bias, he still has the remedy of assailing
it before the proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The
cases against the petitioner will now acquire a
different dimension and then move to a new
stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant
justice will hit a higher decibel while the
gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the
respondent Ombudsman to balance the right of
the State to prosecute the guilty and the right of
an accused to a fair investigation and trial which
has been categorized as the "most fundamental
of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall
have a circus-free atmosphere. He has to
provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority."
Rights in a democracy are not decided by the
mob whose judgment is dictated by rage and not
by reason. Nor are rights necessarily resolved
by the power of number for in a democracy, the
dogmatism of the majority is not and should
never be the definition of the rule of law. If
democracy has proved to be the best form of
government, it is because it has respected the
right of the minority to convince the majority that
it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to
457 | PART 1 C O N S T I 1 FULLTEXT
man's progress from the cave to civilization. Let
us not throw away that key just to pander to
some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph
Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de
jure 14th President of the Republic
are DISMISSED.
Legarda, Magsaysay, Flavier, Biazon,
Osmeña III. Those who vote "no" were
Senators Ople, Defensor-Santiago, John
Osmeña, Aquino-Oreta, Coseteng,
Enrile, Honasan, Jaworski, Revilla, Sotto
III and Tatad.
18
Philippine Star, January 17, 2001, p.
1.

SO ORDERED. 19
Ibid., January 18, 2001, p. 4.

Footnotes 20
Ibid., p. 1.

1
Philippine Daily Inquirer (PDI), October 21
Ibid., January 19, 2001, pp. 1 and 8.
5, 2000, pp. A1 and A17.
22
"Erap's Final Hours Told" by Edgardo
2
PDI, October 6, 2000, pp. A1 and A18. Angara, (hereinafter referred to as
"Angara Diary"), PDI, February 4, 2001,
3
Ibid., October 12, 2000, pp. A1 and p. A16.
A17.
23
Philippine Star, January 20, 2001, p.
4
Ibid., October 14, 2000, p. A1. 4.

5
Ibid., October 18, 2000, p. A1.
24
PDI, February 4, 2001, p. A16.

6
Ibid., October 13, 2000, pp. A1 and
25
Philippine Star, January 20, 2001, pp.
A21. 1 and 11.

7
Ibid., October 26, 2000, p. A1.
26
Ibid., January 20, 2001, p. 3.

8
Ibid., November 2, 2000, p. A1.
27
PDI, February 5, 2001, pp. A1 and A6.

9
Ibid., November 3, 2000, p. A1.
28
Philippine Star, January 21, 2001, p.
1.
10
Ibid., November 4, 2000, p. A1.
29
PDI, February 6, 2001, p. A12.
11
The complaint for impeachment was
based on the following grounds: bribery, Annex A, DOJ-OSG, Joint Comment;
30

graft and corruption, betrayal of public Rollo, G.R. Nos. 146710-15, p. 288.
trust, and culpable violation of the
Constitution. Annex A-1, Petition, G.R. Nos.
31

146710-15; Rollo, p. 34.

12
Ibid., November 14, 2000, p. A1.
32
Ibid.
13
Ibid., November 21, 2000, p. A1.
Annex A, Petition, G.R. Nos. 146710-
33

14
Ibid., December 8, 2000, p. A1. 15; Rollo, p. 33.

Ibid., December 23, 2000, pp. A1 and

15 34
Philippine Star, January 21, 2001, p.
A19. 1; January 23, 2001, pp. 1 and 4;
January 24, 2001, p. 3; PDI, January 25,
16
Ibid., January 12, 2001, p. A1. 2001, pp. A1 and A15.

Those who voted "yes" to open the

17
35
Philippine Star, January 24, 2001, p.
envelope were: Senators Pimentel, 1.
Guingona, Drilon, Cayetano, Roco,
458 | PART 1 C O N S T I 1 FULLTEXT
36
PDI, January 25, 2001, p. 1.
37
Ibid., p. 2.
Annex C, DOJ-OSG Joint Comment;
38
Rollo, GR Nos. 146710-15, p. 290.
39
Annex D, id; ibid., p. 292.
40
PDI, January 27, 2001, p. 1.
41
PDI, February 13, 2001, p. A2.
Philippine Star, February 13, 2001, p.
42
A2.
43
Annex E, id.; ibid., p. 295.
44
PDI, February 8, 2001, pp. A1 & A19.
45
Annex F, id.; ibid., p. 297.
46
PDI, February 10, 2001, p. A2.
47
Annex G, id.; ibid., p. 299.
48
PDI, February 8, 2001, p. A19.
49
Philippine Star, February 3, 2001, p. 4.
"Acceptance of Gloria is Nationwide,"
50
Mahar Mangahas, Manila Standard,
February 16, 2001, p. 14.
See The Chief Justice's Extended
51
Explanation for his Voluntary Inhibition;
Rollo, GR Nos. 146710-15, pp. 525-527.
52
See Letter of Inhibition of Associate
Justice Panganiban; Rollo, GR No.
146738, pp.120-125.
53
Rollo, G.R. No. 146738, p. 134.
Leonard de Vera and Dennis
54
Funa; see their Memorandum, pp. 16-
27; Rollo, GR Nos. 146710-15, Vol. III,
pp. 809-820.
55
Gunther and Sullivan, Constitutional
law, 13th ed., pp. 45-46.
369 US 186, 82 S.Ct. 691, 7 L. ed 2d
56
663, 686 (1962).
See e.g., Integrated Bar of the
57
Philippines v. Hon. Zamora, et al., GR
No. 141284, 15 August 2000; Miranda v.
Aguirre, 314 SCRA 603 (1999);
Santiago v. Guingona, 298 SCRA 756
(1998); Tatad v. Secretary of the
Department of Energy, 281 SCRA 330
(1997); Marcos v. Manglapus, 177
SCRA 668 (1989); Gonzales v.
COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino
v. Cuenco 83 Phil. 17 (1949); Vera v.
Avelino, 77 Phil 192 (1946); Alejandrino
v. Quezon, 46 Phil 83 (1942).
58
103 Phil 1051, 1068 (1957).
Section 1, Article VIII, 1987
59
Constitution.
60
Note that the early treatises on
Constitutional Law are discourses on
limitations of power typical of which is,
Cooley's Constitutional Limitations.
61
Joint Resolution, Lawyers League for
a Better Philippines and/or Oliver A.
Lozano v. Pres. Corazon C. Aquino, et
al., GR No. 73748; People's Crusade for
Supremacy of the Constitution, etc. v.
Mrs. Cory Aquino, et al., GR No. 73972;
and Councilor Clifton U. Ganay v.
Corazon C. Aquino, et al., GR No.
73990, May 22, 1986.
62
Letter of Association Justice Reynato
S. Puno, 210 SCRA 597 [1992].
63
Proclamation No. 3 (1986).
64
It states:
I, Gloria Macapagal-Arroyo, Vice
President of the Philippines, do solemnly
swear that I will faithfully and
conscientiously fulfill my duties as
President o the Philippines, preserve
and defend its Constitution, execute its
laws, do justice to every man, and
consecrate myself to the service of the
nation.
So help me God.
(Annex I, Comment of the Ombudsman;
Rollo, GR Nos. 146710-15, Vol. II, p.
332)
65
See "Filipinas Despues de Cien Años"
(The Philippines a Century Hence), p.
62.
459 | PART 1 C O N S T I 1 FULLTEXT
66
The guaranty was taken from 83
Ibid.
Amendment I of the US Constitution
which provides: "Congress shall make 84
Ibid.
no law respecting an establishment of
religion or prohibiting the free exercise 85
Ibid.
thereof or abridging the freedom of
speech, or of the press; or the right of
the people peaceably to assemble, and
86
PDI, February 5, 2001, p. A1.
to petition the Government for a redress
of grievance." 87
Ibid., p. A-1.

67
See section 8, Article IV. 88
Ibid.

68
See section 9, Article IV. 89
PDI, February 5, 2001, P. A6.

Emerson, The System of Freedom of

69
Expression, 1970 ed., p. 6, et seq.
70
Ibid. See also concurring opinion of
Justice Branders in Whitney v. California
(74 US 357, 375-76) where he said "…
the greatest menace to freedom is an
inert people …"
71
307 US 496 (1939).
90
PDI, February 6, 2001, p. A1.
91
In the Angara diary which appeared in
the PDI issue of February 5, 2001,
Secretary Angara stated that the letter
came from Asst. Secretary Boying
Remulla; that he and Political Adviser
Banayo opposed it; and that PMS head
Macel Fernandez believed that the
petitioner would not sign the letter.

72
Chafee, Jr., Free Speech in the United
92
Congressional Record, 4th Congress,
States, 1946 ed., pp. 413-415, 421. 2nd Session, March 4, 1959, pp. 603-
604.
73
260 SCRA 798 (1996). 93
Id., May 9, 1959, p. 1988
Section 1, Article II of the 1987
74

Constitution reads: Section 18 (2), Article III of the 1987

94

Constitution provides: "No involuntary

"The Philippines is a democratic and
republican State. Sovereignty resides in
the people and all government authority
emanates from them."
servitude in any form shall exist except
as a punishment for a crime whereof the
party shall have been duly convicted."
Reply Memorandum, p. 3; Rollo, GR
95

Nos. 146710-15, Vol. IV.

75
Infra at 26.
House Resolution No. 175, 11th
96
76
Infra at 41.
Congress, 3rd Session (2001), reads:
77
1 Cranch (5 US) 137, 2 L ed 60 "RESOLUTION EXPRESSING THE
(1803).
FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE
78
Gonzales v. Hernandez, 2 SCRA 228 ADMINISTRATION OF HER
(1961). EXCELLENCY, GLORIA MACAPAGAL-
ARROYO, PRESIDENT OF THE
79
See its February 4, 5, and 6, 2001 PHILIPPINES
issues.
WHEREAS, on January 20, 2001, Vice
80
PDI, February 4, 2001, p. A1. President Gloria Macapagal-Arroyo was
sworn in as the 14th President of the
81
Ibid. Philippines;

82
Ibid. WHEREAS, her ascension to the
highest office of the land under the
460 | PART 1 C O N S T I 1 FULLTEXT
dictum, "the voice of the people is the
voice of God" establishes the basis of
her mandate on integrity and morality in
government;
WHEREAS, the House of
Representatives joins the church, youth,
labor and business sectors in fully
supporting the President's strong
determination to succeed;
WHEREAS, the House of
Representatives is likewise one with the
people in supporting President Gloria
Macapagal-Arroyo's call to start the
healing and cleansing process for a
divided nation in order to 'build an
edifice of peace, progress and economic
stability' for the country: Now, therefore,
be it
Resolved by the House of
Representatives, To express its full
support to the administration of Her
Excellency, Gloria Macapagal-Arroyo,
14th President of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the
House of Representatives on January
24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
97
11th Congress, 3rd Session (2001).
98
11th Congress, 3rd Session (2001).
Annex 2, Comment of Private
99
Respondents De Vera, et al.; Rollo, GR
No. 146710-15, Vol. II, p. 231.
100
11th Congress, 3rd Session (2001).
101
11th Congress, 3rd Session (2001).
102
103 Phil 1051, 1067 (1957).
Baker vs. Carr, supra at 686
103
headnote 29.
104
16 Phil 534 (1910).
105
The logical basis for executive
immunity from suit was originally
founded upon the idea that the "King
can do no wrong". [R.J. Gray, Private
Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived
at the time of absolute monarchies in
medieval England when it was generally
accepted that the seat of sovereignty
and governmental power resides in the
throne. During that historical, juncture, it
was believed that allowing the King to
be sued in his courts was a contradiction
to the sovereignty of the King.
With the development of democratic
thoughts and institutions, this kind of
rationalization eventually lost its moral
force. In the United States, for example,
the common law maxim regarding the
King's infallibility had limited reception
among the framers of the Constitution.
[J. Long, How to Sue the President: A
Proposal for Legislation Establishing the
Extent of Presidential Immunity, 30 Val.
U. L. Rev. 283 (1995)]. Still, the doctrine
of presidential immunity found its way of
surviving in modern political times,
retaining both its relevance and vitality.
The privilege, however, is now justified
for different reasons. First, the doctrine
is rooted in the constitutional tradition of
separation of powers and supported by
history. [Nixon v. Fitzgerald, 451 U. S.
731 (1982)]. The separation of powers
principle is viewed as demanding the
executive's independence from the
judiciary, so that the President should
not be subject to the judiciary's whim.
Second, by reason of public
convenience, the grant is to assure the
exercise of presidential duties and
functions free from any hindrance or
distraction, considering that the Chief
Executive is a job that, aside from
requiring all of the office-holder's time,
also demands undivided attention.
[Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and
substance of the chief executive will be
spent on wrangling litigation, disrespect
upon his person will be generated, and
distrust in the government will soon
follow. [Forbes v. Chouco Tiaco, 16 Phil.
534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains
from discouraging official excesses
might be more than offset by the losses
from diminished zeal [Agabin, op cit., at
461 | PART 1 C O N S T I 1 FULLTEXT
121.]. Without immunity, the president See section 4, Art. XI of the 1987
122

would be disinclined to exercise Constitution.

decision-making functions in a manner
that might detrimentally affect an See section 13 (1), Art. XI of the 1987
123

individual or group of individuals. Constitution.

[See H. Schechter, Immunity of
Presidential Aides from Criminal
See section 14, Art. XI of the 1987
124
Prosecution, 57 Geo. Wash. L. Rev. 779
Constitution.
(1989)].
125
See Brandwood, Notes: "You Say
106
62 Phil. L.J. 113 (1987).
'Fair Trial' and I say 'Free Press:' British
and American Approaches to Protecting
107
See Bulletin Today, August 16, 1984, Defendants' Rights in High Profile
p. 1; December 18, 1984, p. 7. Trials," NYU Law Rev., Vol. 75, No. 5,
pp. 1412-1451 (November 2000).
Records of the Constitutional
108

Commission of 1986, Vol. II, Records, p. 126

Id., p. 1417.
423, July 29, 1986.
See e.g., Martelino, et al. v.
127
109
Supra at 47. Alejandro, et. al., 32 SCRA 106 (1970);
People v. Teehankee, 249 SCRA 54
Records of Constitutional
110
(1995)
Commission, Vol. II, July 28, 1986, p.
355. 128
249 SCRA 54 (1955)

111
145 SCRA 160 (1986). 129
287 SCRA 581 at pp. 596-597 (1998)

112
128 SCRA 324 (1984). 130
247 SCRA 652 (1995)

In Re: Raul Gonzalez, 160 SCRA 771

113
Extensive publicity did not result in
131

(1988); Cuenco v. Fernan, 158 SCRA the conviction of well known

29 (1988); and Jarque v. Desierto, A.C.
No. 4509, 250 SCRA xi-xiv (1995).,
Wallace v. Board of Education, 280
114
personalities. E.g., OJ Simpson, John
Mitchell, William Kennedy Smith and
Imelda Marcos.

Ala. 635, 197 So 2d 428 (1967). Memorandum, pp. 29-30; Rollo, GR

132

Nos. 146710-15, Vol. III, pp. 572-573.

418 US 683, 94 S. Ct. 3090, 41 L ed
115

1039 (1974). 134

See section 4, Rule 112.

457 US 731, 73 L ed. 349, 102 S Ct.

116
Estes v. Texas, 381 US 532, 540
135

2690 (1982). (1965).

117
520 U.S. 681 (1997).

See section 1, Art. XI of the 1987

118 CONCURRING OPINION
Constitution.
VITUG, J.:
See section 27, Art. II of the 1987
119

Constitution. This nation has a great and rich history authored

by its people. The EDSA Revolution of 2001
See, section 1, Art. XI of the 1987
120 could have been one innocuous phenomenon
Constitution. buried in the pages of our history but for its
critical dimensions. Now, EDSA 2 would be far
See section 15, Art. XI of the 1987
121 from being just another event in our annals. To
Constitution. this day, it is asked – Is Mr. Joseph Ejercito
Estrada still the President of the Republic of the
Philippines?

462 | PART 1 C O N S T I 1 FULLTEXT

To retort, one is to trace the events that led to
the denouement of the incumbency of Mr.
Joseph Ejercito Estrada. Mr. Estrada, herein
petitioner, was elected to office by not less than
10 million Filipinos in the elections of May 1998,
served well over two years until January 2001.
Formally impeached by the Lower House of
Representatives for cases of Graft and
Corruption, Bribery, Betrayal of Public Trust and
Culpable violation of the Constitution, he was
tried by the Senate. The Impeachment Tribunal
was tasked to decide on the fate of Mr. Estrada-
if convicted, he would be removed from office
and face prosecution with the regular courts or, if
acquitted, he would remain in office. An
evidence, however, presented by the
prosecution tagged as the "second envelope"
would have it differently. The denial by the
impeachment court of the pleas to have the
dreaded envelope opened promptly put the trial
into a halt. Within hours after the controversial
Senate decision, an angered people trooped
again to the site of the previous uprising in 1986
that toppled the 20-year rule of former President
Ferdinand E. Marcos - EDSA. Arriving in trickles,
the motley gathering swelled to an estimated
million on the fourth day, with several hundreds
more nearing Mendiola reportedly poised to
storm Malacañang.
In the morning of 20 January 2001, the people
waited for Erap to step down and to heed the
call for him to resign. At this time, Estrada was a
picture of a man, elected into the Presidency,
but beleaguered by solitude-empty of the
support by the military and the police,
abandoned most of his cabinet members, and
with hardly any firm succor from constituents.
And despite the alleged popularity that brought
him to power, mass sentiment now appeared to
be for his immediate ouster.
With this capsule, the constitutional successor of
Estrada in the person of Gloria Macapagal-
Arroyo, then incumbent Vice-President, took the
cue and requested the Chief Justice her oath-
taking. In a letter, sent through "fax" at about half
past seven o'clock in the morning of 20 January
2001, read:
"The undersigned respectfully informs this
Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties
of his office resulting in his permanent disability
to govern the serve his unexpired term. Almost
all of his cabinet members have resigned and
the Philippine National police have withdrawn
their support for Joseph Ejercito Estrada. Civil
society has likewise refused to recognize him as
President.
"In view of this, I am assuming the position of
the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as
President of the republic before the Honorable
Chief Justice Hilario G. Davide. Jr., today, 20
January 2001, 12:00 noon at EDSA Shrine,
Quezon City, Metro Manila.
"May I have the honor to invite the members of
the Honorable Court to attend the oath-taking."
The tribunal, aware of the grave national crisis
which had the marks of yet intensifying into
possible catastrophic proportion, agreed to
honor the request: Therefore, the Court,
cognizant that it had to keep its doors open, had
to help assure that the judicial process was seen
to be functioning. As the hours passed, however,
the extremely volatile situation was getting more
precarious by the minute, and the combustible
ingredients were all but ready to ignite. The
country was faced with a phenomenon --- the
phenomenon of a people, who, in the exercise of
sovereignty perhaps too limitless to be explicitly
contained and constrained by the limited words
and phrases of the constitution, directly sought
to remove their president from office. On that
morning of the 20th of January, the his tribunal
was confronted with a dilemma ----- should it
choose a literal and narrow view of the
constitution, invoke the rule of strict law, and
exercise its characteristics reticence? Or was it
propitious for it to itself take a hand? The first
was fraught with danger and evidently too risky
to accept. The second could very well help avert
imminent bloodshed. Given the realities; the
Court was left hardly with choice. Paradoxically,
the first option would almost certainly imperil the
Constitution, the second could save it. The
confirmatory resolution was issued following
the en banc session of the Court on 22 January
2001; it read:
"A.M. No. 01-1-05-SC- In re: Request of Vice-
President Gloria Macapagal-Arroyo to take her
Oath of Office as President of the Philippines
before the Chief Justice- Acting on the urgent
request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the
Chief Justice and confirmed letter to the Court,
dated January 20, 2001, which request was
treated as an administrative matter, the Court
resolved unanimously to CONFIRM the authority
given by the twelve (12) members of the Court
then present to the Chief justice on January 20,
2001 to administer the oath of office to Vice
President Gloria Macapagal-Arroyo as President
of the Philippines, at noon of January 20, 2001.
463 | PART 1 C O N S T I 1 FULLTEXT
"This resolution is without prejudice to the
disposition of any justiceable case which may be
filed by a proper party."
At high noon on the 20th January 2001, Gloria
Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines.
EDSA, once again, had its momentous role in
yet another "bloodless revolution." The Court
could not have remained placid amidst the
worsening situation at the time. It could not in
conscience allow the high-strung emotions and
passions of EDSA to reach the gates of
Malacañang. The military and police defections
created stigma that could not be left unguarded
by a vacuum in the presidency. The danger was
simply overwhelming. The extra-ordinariness of
the reality called for an extra-ordinary solution.
The court has chosen to prevent rather than
cure an enigma incapable of being recoiled.
The alarming social unrest ceased as the
emergence of a new leadership so unfolded.
The promise of healing the battered nation
engulfed the spirit but it was not to last.
Questions were raised on the legitimacy of Mme.
Macapagal-Arroyo's assumption to office. Mr.
Estrada would insist that he was still President
and that Mme. Macapagal-Arroyo took over only
in an acting capacity.
So it is argued, Mr. Estrada remains to be the
President because under the 1987 Constitution,
the Vice-President may assume the presidency
only in its explicitly prescribed instances; to wit,
firstly, in case of death, permanent disability,
removal from office, or resignation of the
President,1secondly, when the President of the Senate and the
Speaker of the House of representatives his written declaration that
he is unable to discharge the powers and duties of his office, 2
and thirdly, when a majority of all the members of the cabinet
transmit to the President and to the speaker of the House of
representatives their written declaration that the President is unable
to discharge the powers and duties of his office, 3 the latter two
grounds being culled as the "disability."
Mr. Estrada believes that he cannot be
considered to have relinquished his office for
none of the above situations have occurred. The
conditions for constitutional succession have not
been met. He states that he has merely been
"temporarily incapacitated" to discharge his
duties, and he invokes his letters to both
Chambers of the Congress consistent with
section 11 of Article VII of the 1987 Constitution.
The twin letters, dated 20 January 2001, to the
two houses read:
"By virtue of the provisions of Section 11, Article
VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the
powers and duties of my office. By operation of
law and the Constitution, the Vice-President
shall be acting President."
Truly, the grounds raised in the petition are as
dubitable as the petitioner's real motive in filling
the case.
The pressing issue must now catapult to its end.
Resignation is an act of giving up or the act of an
officer by which he renounces his office
indefinitely. In order to constitute a complete and
operative act of resignation, the officer or
employee must show a clear intention to
relinquish or surrender his position accompanied
by an act of relinquishment. Resignation implies,
of the intention to surrender, renounce,
relinquish the office. 4
Mr. Estrada imports that he did not resign from
the presidency because the word "resignation"
has not once been embodied in his letters or
said in his statements. I am unable to oblige.
The contemporary acts of Estrada during those
four critical days of January are evident of his
intention to relinquish his office. Scarcity of
words may not easily cloak reality and hide true
intentions. Crippled to discharge his duties, the
embattled President acceded to have
negotiations conducted for a smooth transition of
power. The belated proposals of the President to
have the impeachment Court allow the opening
of the controversial envelope and to postpone
his resignation until 24 January 2001 were both
rejected. On the morning of 20 January 2001,
the President sent to congress the following
letter ---
"By virtue of the provisions of Section II, Article
VII, of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the
powers and duties of my office. By operation of
law and the Constitution, the vice-president shall
be the acting president."
Receipt of the letter by the Speaker of the lower
house was placed at around eight o'clock in the
morning but the Senate president was said to
have received a copy only on the evening of that
day. Nor this Court turn a blind eye to the
paralyzing events which left petitioner to
helplessness and inutility in office – not so much
by the confluence of events that forces him to
step down the seat of power in a poignant and
teary farewell as the recognition of the will of the
464 | PART 1 C O N S T I 1 FULLTEXT
governed to whom he owned allegiance. In his
"valedictory message," he wrote:
"At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines.
While along with many other legal minds of our
country, I have strong and serious doubts about
the legality and constitutionality of her
proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity
and order in our civil society.
"It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this
country, for the sake of peace and in order to
begin the healing process of our nation. I leave
the palace of our people with gratitude for the
opportunities given to me for service to our
people. I will not shirk from any future challenges
that may come ahead in the same service of our
country.
"I call on all my supporters and followers to join
me in the promotion of a constructive national
spirit of reconciliation and solidarity.
"May the Almighty bless our country and our
beloved people.
"MABUHAY!
Abandonment of office is a species of
resignation, 5 and it connotes the giving up of
the office although not attending by the
formalities normally observed in resignation.
Abandonment may be effected by a positive act
or can be the result of an omission, whether
deliberate or not. 6
Mr. Joseph Estrada invokes "temporary
incapacity" under Section 11, Article VII of the
Constitution. This assertion is difficult to sustain
since the temporary incapacity contemplated
clearly envisions those that are personal, either
by physical or mental in nature, 7 and innate to
the individual. If it were otherwise, when then
would the disability last? Would it be when the
confluent causes which have brought about that
disability are completely set in reverse? Surely,
the idea fails to register well to the simple mind.
Neither can it be implied that the takeover has
installed a revolutionary government. A
revolutionary government is one which has
taken the seat of power by force or in defiance of
the legal processes. Within the political context,
a revolution is a complete overthrow of the
established government.8 In its delimited
concept, it is characterized often,9 albeit not
always,10 by violence as a means and
specificable range of goals as ends. In contrast,
EDSA 2 did not envision radical changes. The
government structure has remained intact.
Succession to the presidency has been by the
duly-elected Vice-president of the Republic. The
military and the police, down the line, have felt to
be so acting in obedience to their mandate as
the protector of the people.
Any revolution, whether it is violent or not,
involves a radical change. Huntington sees
revolution as being "a rapid, fundamental and
violent domestic change in the dominant values
and myths of society in its political institution,
social structure, leadership, government activity
and policies.11 " The distinguished A.J. Milne
makes a differentiation between constitutional
political action and a revolutionary political
action. A constitutional political action, according
to him, is a political within a legal framework and
rests upon a moral commitment to uphold the
authority of law. A revolutionary political action,
on the other hand, acknowledges no such moral
commitment. The latter is directly towards
overthrowing the existing legal order and
replacing it with something else.12 And what,
one might ask, is the "legal order" referred to? It
is an authoritative code of a polity comprising
enacted rules, along with those in the
Constitution13 and concerns itself with
structures rather than personalities in the
establishments. Accordingly, structure would
prefer to the different branches of the
government and personalities would be the
power-holders. If determination would be made
whether a specific legal order is intact or not,
what can be vital is not the change in the
personalities but a change in the structure.
The ascension of Mme. Macapagal-Arroyo to the
presidency has resulted neither in the obligation
of the legal order. The constitutionally-
established government structures, embracing
various offices under the executive branch, of
the judiciary, of the legislature, of the
constitutional commissions and still other
entities, including the Armed Forces of the
Philippines and the Philippine National Police
and local governments as well, have all
remained intact and functioning.
An insistence that the events in January 2001
transgressed the letter of the Constitution is to
ignore the basic tenet of constitutionalism and to
functionalize the clearly preponderant facts.
465 | PART 1 C O N S T I 1 FULLTEXT
More than just an eloquent piece of frozen
document, the Constitution should be deemed to
be a living testament and memorial of the
sovereign will of the people from whom all
government authority emanates. Certainly, this
fundamental statement is not without meaning.
Nourished by time, it grows and copes with the
changing milieu. The framers of the constitution
could not have anticipated all conditions that
might arise in the aftermath of events. A
constitution does not deal in details, but
enunciates the general tenets that are intended
to apply to all facts that may come about but
which can be brought within its directions. 14
Behind its conciseness is its inclusiveness and
its apertures overridingly lie, not fragmented but
integrated and encompassing, its spirit and its
intent. The Constitution cannot be permitted to
deteriorate into just a petrified code of legal
maxims and hand-tied to its restrictive letters
and wordings, rather than be the pulsating law
that it is. Designed to be an enduring instrument,
its interpretation is not be confined to the
conditions and outlook which prevail at the time
of its adoption15 instead, it must be given
flexible to bring it in accord with the vicissitudes
of changing and advancing affairs of men.16
Technicalities and play of words cannot frustrate
the inevitable because there is an immense
difference between legalism and justice. If only
to secure our democracy and to keep the social
order – technicalities must give away. It has
been said that the real essence of justice does
not emanate from quibblings over patchwork
legal technicality but proceeds from the spirit's
gut consciousness of the dynamic role as a brick
in the ultimate development of social edifice.17
Anything else defeats the spirit and intent of the
Constitution for which it is formulated and
reduces its mandate to irrelevance and
obscurity.
All told the installation of Mme. Macapagal-
Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The
new government, now undoubtedly in effective
control of the entire country, domestically and
internationally recognized to be legitimate,
acknowledging a previous pronouncement of the
court, 18 is a de jure government both in fact
and in law. The basic structures, the principles,
the directions, the intent and the spirit of the
1987 Constitution have been saved and
preserved. Inevitably, Gloria Macapagal-Arroyo
is the President, not merely an Acting President,
of the Republic of the Philippines.
A reminder of an elder to the youth. After two
non-violent civilian uprising within just a short
span of years between them, it might be said
that popular mass action is fast becoming an
institutionalized enterprise. Should the streets
now be the venue for the exercise of popular
democracy? Where does one draw the line
between the rule of law and the rule of the mob,
or between "People Power" and "Anarchy?" If,
as the sole justification for its being, the basis of
the Arroyo presidency lies alone on those who
were at EDSA, then it does rest on loose and
shifting sands and might tragically open a
Pandora's box more potent than the malaise it
seeks to address. Conventional wisdom dictates
the indispensable need for great sobriety and
extreme circumspection on our part. In this kind
of arena, let us be assumed that we are not
overcome by senseless adventurism and
opportunism. The country must not grow
oblivious to the innate perils of people power for
no bond can be stretched far too much to its
breaking point. To abuse is to destroy that which
we may hold dear.
1
Section 8, Article VII, 1987 Constitution
2
Section 11, 1st paragraph, Article VII,
1987 Constitution
3
Ibid., 2nd paragraph
4
Ortiz vs. Comelec, 162 SCRA 812
5
Sangguniang Bayan ng San Andres vs.
Court of Appeals, G.R. No. 11883, 16
January 1998
6
Cruz, Carlos L., The Law on Public
Officers, p. 174, 1997 Edition
7
"Mr. SUAREZ. xxx
"May we now go to Section 11, page 5.
This refers to the President's written
declaration of inability to discharge the
powers and duties of the Office of the
President. Can this written declaration to
be done for and in behalf of the
President if, for example, the President
is in no position to sign his name, like he
suffers an accident and both his arms
get to be amputated?
"Mr. REGALADO. We have not a
situation like that even in the jurisdiction
from which we borrowed this provision,
but we feel that in remote situation that
the Commissioner has cited in that the
President cannot make a written
declaration, I suppose an alternative
466 | PART 1 C O N S T I 1 FULLTEXT
would be considered wherein he can so
expressly manifest in an authentic
manner what should be contained in a
written declaration. xxx
"Mr. SUAREZ. xxx I am thinking in terms
of what happened to the President
Wilson. Really, the physical disability of
the gentleman was never made clear to
the historians. But suppose a situation
will happen in our country where the
President may suffer coma and gets to
be unconscious, which is practically a
total inability to discharge the powers
and duties of his office, how can he
submit a written declaration of inability to
perform the duties and functions of his
office?
"x x x x x x x x x
"FR. BERNAS. Precisely. The second
paragraph is to take care of the Wilson
situation.
"Mr. SUAREZ. I see.
"Mr. REGALADO. The Wilson situation
was in 1917. Precisely, this twenty-fifth
Amendment to the American
Constitution as adopted on February 10,
1967 prevent a recurrence of such
situation. Besides, it was not only the
Wilson matter. As I have already
mentioned here, they have had
situations in the United States, including
those of President Garfield, President
Wilson, President Roosevelt and
President Eisenhower."
(11 RECORDS, PP. 421-423)
8
Gitlow vs. Kiely, 44 F. 2d as cited in 46
CJS 1086
9
Ibid.
10
Ibid.
Zarocin, Theories of Revolution in
11
Contemporary Historiography, 88
POLITICAL SCIENCE QUARTERLY
Milne, Philosophy and Political Action,
12
The Case of Civil Rights, 21 Political
Studies, 453, 456 (1973)
Fernandez, LAW and POLITY:
13
Towards a System Concept of Legal
validity, 46 Philippines Law Journal,
390-391 (1971)
14
16 American Jurisprudence 2d.
State ex rel Columbus vs. Keterrer,
15
127 Ohio St 483, 189 NE 252
John Hancock Mut. Life Ins. Co. vs.
16
Ford Motors Co., 322 Mich 209, 39 NW
2d 763
Battles in the Supreme Court by
17
Justice Artemio Panganiban, pp. 103-
104
Lawyers' League for a Better
18
Philippines vs. President Corazon C.
Aquino, et al., G.R. No. 73748, May 22,
1986.
CONCURRING OPINION
MENDOZA, J.:
In issue in these cases is the legitimacy of the
presidency of respondent Gloria Macapagal-
Arroyo. In G.R. No. 146738, the petition for quo
warranto seeks a declaration that petitioner
Joseph Ejercito Estrada is the lawful President
of the Philippines and that respondent Gloria
Macapagal-Arroyo is merely acting President on
account o the former's temporary disability. On
the other hand, in G.R. Nos. 146710-15, the
petition seeks to prohibit respondent
Ombudsman Aniano Desierto from investigating
charges of plunder, bribery, malversation of
public funds, and graft and corruption against
petitioner Estrada on the theory that, being still
President, he is immune from suit.
In both cases, a preliminary question is raised by
respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable
controversy. Respondent Gloria Macapagal-
Arroyo contends that the matter is not justiciable
because of "the virtual impossibility of undoing
what has been done, namely, the transfer of
constitutional power to Gloria Macapagal-Arroyo
as a result of the events starting from the expose
of Ilocos Sur Governor Luis 'Chavit' Singson in
October 2000."1 In support of this contention,
respondent cites the following statements of this
Court concerning the Aquino government which
it is alleged applies to her administration:
. . . [T]he legitimacy of the Aquino government is
not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines
467 | PART 1 C O N S T I 1 FULLTEXT
are the judge. And the people have made the
judgment; they have accepted the government
of President Corazon C. Aquino which is in
effective control of the entire country so that it is
not merely a de facto government but is in fact
and law a de jure government. Moreover, the
community of nations has recognized the
legitimacy of the present government. All the
eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the
Republic under her government.2
From the natural law point of view, the right of
revolution has been defined as "an inherent right
of a people to cast out their rulers, change their
policy or effect radical reforms in their system of
government or institutions by force or a general
uprising when the legal and constitutional
methods of making such change have proved
inadequate or are so obstructed as to be
unavailable." It has been said that "the locus of
positive law-making power lies with the people of
the state" and from there is derived" the right of
the people to abolish, to reform and to alter any
existing form of government without regard to
the existing constitution."3
But the Aquino government was a revolutionary
government which was established following the
overthrow of the 1973 Constitution. The
legitimacy of a revolutionary government cannot
be the subject of judicial review. If a court
decides the question at all qua court, it must
necessarily affirm the existence and authority of
such government under which it is exercising
judicial power.4 As Melville Weston long ago put
it, "the men who were judges under the old
regime and the men who are called to be judges
under the new have each to decide as
individuals what they are to do; and it may be
that they choose at grave peril with the factional
outcome still uncertain."5 This is what the Court
did in Javellana v. Executive Secretary6 when it
held that the question of validity of the 1973
Constitution was political and affirmed that it was
itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v.
COMELEC,8 "[P]etitioners have come to the
wrong forum. We sit as a Court duty-bound to
uphold and apply that Constitution. . . . It is much
too late in the day to deny the force and
applicability of the 1973 Constitution."
In contrast, these cases do not involve the
legitimacy of a government. They only involve
the legitimacy of the presidency of respondent
Gloria Macapagal-Arroyo, and the claim of
respondents is precisely that Macapagal-
Arroyo's ascension to the presidency was in
accordance with the Constitution.9
Indeed, if the government of respondent Gloria
Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by
succession due to resignation or permanent
disability of petitioner Joseph Ejercito Estrada is
useless. All that respondents have to show is
that in the contest for power Macapagal-Arroyo's
government is the successful one and is now
accepted by the people and recognized by the
community of nations.
But that is not the case here. There was no
revolution such as that which took place in
February 1986. There was no overthrow of the
existing legal order and its replacement by a
new one, no nullification of the Constitution.
What is involved in these cases is similar to what
happened in 1949 in Avelino v. Cuenco.10 In
that case, in order to prevent Senator Lorenzo
M. Tañada from airing charges against Senate
President Jose Avelino, the latter refused to
recognize him, as a result of which tumult broke
out in the Senate gallery, as if by pre-
arrangement, as the Court noted, and Avelino
suddenly adjourned the session and, followed by
six senators, walked out of the session hall. The
remaining senators then declared the position of
President of the Senate vacant and elected
Senator Mariano Jesus Cuenco acting president.
The question was whether respondent Cuenco
had been validly elected acting president of the
Senate, considering that there were only 12
senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen.
Sotto) was ill in the hospital.
Although in the beginning this Court refused to
take cognizance of a petition for quo warranto
brought to determine the rightful president of the
Senate, among other things, in view of the
political nature of the controversy, involving as it
did an internal affair of a coequal branch of the
government, in the end this Court decided to
intervene because of the national crisis which
developed as a result of the unresolved question
of presidency of the Senate. The situation
justifying judicial intervention was described,
thus:
We can take judicial notice that legislative work
has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by
the non-attendance to sessions of about one-
half of the members; warrants of arrest have
been issued, openly defied, and remained
unexecuted like mere scraps of paper,
notwithstanding the fact that the persons to be
arrested are prominent persons with well-known
addresses and residences and have been in
daily contact with news reporters and
468 | PART 1 C O N S T I 1 FULLTEXT
photographers. Farce and mockery have been
interspersed with actions and movements
provoking conflicts which invite bloodshed.
. . . Indeed there is no denying that the situation,
as obtaining in the upper chamber of Congress,
is highly explosive. It had echoed in the House
of Representatives. It has already involved the
President of the Philippines. The situation has
created a veritable national crisis, and it is
apparent that solution cannot be expected from
any quarter other than this Supreme Court, upon
which the hopes of the people for an effective
settlement are pinned.11
In voting to assume jurisdiction, Chief Justice
Paras wrote: "[T]his Court has no other
alternative but to meet the challenge of the
situation which demands the utmost of judicial
temper and judicial statesmanship. As herein
before stated, the present crisis in the Senate is
one that imperatively calls for the intervention of
this Court."12 Questions raised concerning
respondent Gloria Macapagal-Arroyo's
presidency similarly justify, in my view, judicial
intervention in these cases.
Nor is our power to fashion appropriate
remedies in these cases in doubt. Respondents
contend that there is nothing else that can be
done about the assumption into office of
respondent Gloria Macapagal-Arroyo. What has
been done cannot be undone. It is like
toothpaste, we are told, which, once squeezed
out of the tube, cannot be put back.
Both literally and figuratively, the argument is
untenable. The toothpaste can be put back into
the tube. Literally, it can be put back by opening
the bottom of the tube — that is how toothpaste
is put in tubes at manufacture in the first place.
Metaphorically, the toothpaste can also be put
back. In G.R. No. 146738, a writ can be issued
ordering respondent Gloria Macapagal-Arroyo to
vacate the Office of the President so that
petitioner Joseph E. Estrada can be reinstated
should the judgment in these cases be in his
favor. Whether such writ will be obeyed will be a
test of our commitment to the rule of law. In
election cases, people accept the decisions of
courts even if they be against the results as
proclaimed. Recognition given by foreign
governments to the presidency poses no
problem. So, as far as the political question
argument of respondents is anchored on the
difficulty or impossibility of devising effective
judicial remedies, this defense should not bar
inquiry into the legitimacy of the Macapagal-
Arroyo administration.
This brings me to the main issue, whether
respondent Gloria Macapagal-Arroyo's
ascension to the Presidency was in accordance
with the Constitution. Art. VII. §8 provides in
pertinent parts:
In case of death, permanent disability, removal
from office, or resignation of the President, the
Vice-President shall become the President to
serve the unexpired term. In case of death,
permanent disability, removal from office, or
resignation of both the President and Vice-
President, the President of the Senate or, in
case of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
The events that led to the departure of petitioner
Joseph E. Estrada from office are well known
and need not be recounted in great detail here.
They began in October 2000 when allegations of
wrong doings involving bribe-taking, illegal
gambling (jueteng), and other forms of
corruption were made against petitioner before
the Blue Ribbon Committee of the Senate. On
November 13, 2000, petitioner was impeached
by the House of Representatives and, on
December 7, impeachment proceedings were
begun in the Senate during which more serious
allegations of graft and corruption against
petitioner were made and were only stopped on
January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in
suppressing damaging evidence against
petitioner. As a result, the impeachment trial was
thrown into an uproar as the entire prosecution
panel walked out and Senate President Aquilino
Pimentel resigned after casting his vote against
petitioner.
The events, as seen through the eyes of foreign
correspondents, are vividly recounted in the
following excerpts from the Far Eastern
Economic Review and Time Magazine quoted in
the Memorandum of petitioner in G.R. Nos.
146710-15, thus:
1. The decision immediately sent
hundreds of Filipinos out into
the streets, triggering rallies that
swelled into a massive four-day
demonstration. But while anger
was apparent among the middle
classes, Estrada, a master of
the common touch, still retained
largely passive support among
the poorest Filipinos. Citing that
mandate and exploiting the
letter of the Constitution, which
stipulates that a written
469 | PART 1 C O N S T I 1 FULLTEXT
 resignation be presented, he
refused to step down even after
all of the armed forced, the
police and most of his cabinet
withdrew their support for him.
[FAR EASTERN ECONOMIC
REVIEW, "More Power to The
Powerful", id, at p. 18].
2. When an entire night passed
without Estrada's resignation,
tens of thousands of frustrated
protesters marched on
Malacañang to demand that the
president leave office. An air
force fighter jet and four military
helicopters buzzed the palace to
remind the president that had
lost the reins of power. [FAR
EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras
were focused on the rallies –
and the commentators became
lost in reveries about People
Power revisited – behind-the-
scenes negotiations had been
going on non-stop between
military factions loyal to Estrada
and those who advocated a
quick coup to depose the
President. Chief of Staff Reyes
and Defense Secretary Mercado
had made their fateful call to
Estrada after luncheon attended
by all the top commanders. The
officers agreed that renouncing
Estrada was the best course, in
part because some
commanders were urging more
drastic resolution. If the military
did not come to a consensus,
there loomed the possibility of
factional fighting or, worse, civil
war. [TIME, "People Power
Redux", id at p. 18]
4. It finally took a controversial
Supreme Court declaration that
the presidency was effectively
vacant to persuade Estrada to
pack up and move out to his
family home in Manila – still
refusing to sign a letter of
resignation and insisting that he
was the legal president [FAR
EASTERN ECONOMIC
REVIEW, "More Power to the
Powerful", supra, ibid.].
Petitioner then sent two letters,
one to the Senate President and
the other to the Speaker of the
House, indicating that he was
unable to perform the duties of
his Office.13
To recall these events is to note the moral
framework in which petitioner's fall from power
took place. Petitioner's counsel claimed
petitioner was forced out of Malacañang Palace,
seat of the Presidency, because petitioner was
"threatened with mayhem."14 What, the
President of the Philippines, who under the
Constitution is the commander-in-chief of all the
armed forces, threatened with mayhem? This
can only happen because he had lost his moral
authority as the elected President.
Indeed, the people power movement did not just
happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It
came about because the people, rightly or
wrongly, believed the allegations of graft and
corruption made by Luis "Chavit" Singson,
Emma Lim, Edgardo Espiritu, and other
witnesses against petitioner. Their testimonies
during the impeachment trial were all televised
and heard by millions of people throughout the
length and breadth of this archipelago. As a
result, petitioner found himself on January 19,
2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the
Philippines and the Philippine National Police
withdrew their support of the President, while
civil society announced its loss of trust and
confidence in him. Public office is a public trust.
Petitioner lost the public's trust and as a
consequence remained President only in name.
Having lost the command of the armed forces
and the national police, he found Himself
vulnerable to threats of mayhem.
This is the confession of one who is beaten.
After all, the permanent disability referred to in
the Constitution can be physical, mental or
moral, rendering the President unable to
exercise the powers and functions of his office.
As his close adviser wrote in his diary of the final
hours of petitioner's presidency:
The President says: "Pagod na pagod na ako.
Ayoko na-masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very
tired. I don't want any more of this-it's too
painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)15
Angara himself shared this view of petitioner's
inability. He wrote in his diary:
"Let us be realistic," I counter. "The President
does not have the capability to organize a
counter-attack. He does not have the AFP or the
470 | PART 1 C O N S T I 1 FULLTEXT
Philippine National Police on his side. He is not
only in a corner – he is also down."16
This is the clearest proof that petitioner was
totally and permanently disabled at least as of
11 P.M. of Friday, January 19, 2001. Hence the
negotiations for the transfer of power to the
respondent Vice-President Gloria Macapagal-
Arroyo. It belies petitioner's claim that he was
not permanently disabled but only temporarily
unable to discharge the powers and duties of his
office and therefore can only be temporarily
replaced by respondent Gloria Macapagal-
Arroyo under Art. VII, §11.
From this judgment that petitioner became
permanently disabled because he had lost the
public's trust, I except extravagant claims of the
right of the people to change their government.
While Art. II, §1 of the Constitution says that
"sovereignty resides in the people and all
government authority emanates from them," it
also says that "the Philippines is a democratic
and republican state." This means that ours is a
representative democracy — as distinguished
from a direct democracy — in which the
sovereign will of the people is expressed through
the ballot, whether in an election, referendum,
initiative, recall (in the case of local officials) or
plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.
Indeed, the right to revolt cannot be recognized
as a constitutional principle. A constitution to
provide for the right of the people to revolt will
carry with it the seeds of its own destruction.
Rather, the right to revolt is affirmed as a natural
right. Even then, it must be exercised only for
weighty and serious reasons. As the Declaration
of Independence of July 4, 1776 of the American
Congress states:
We hold these Truths to be self-evident, that all
Men are created equal, that they are endowed
by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the
Pursuit of Happiness — That to secure these
Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of
the Governed, that whenever any Form of
Government becomes destructive of these Ends,
it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its
Foundation on such Principles, and organizing
its Powers in such Form, as to them shall seem
most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that
Governments long established should not be
changed for light and transient Causes; and
accordingly all Experience hath shewn, that
Mankind are more disposed to suffer, while Evils
are sufferable, than to right themselves by
abolishing the Forms to which they are
accustomed. But when a long Train of Abuses
and Usurpations, pursuing invariably the same
Object, evinces a Design to reduce them under
absolute Despotism, it is their Right, it is their
Duty, to throw off such Government, and to
provide new Guards for their future Security.17
Here, as I have already indicated, what took
place at EDSA from January 16 to 20, 2001 was
not a revolution but the peaceful expression of
popular will. The operative fact which enabled
Vice-President Gloria Macapagal-Arroyo to
assume the presidency was the fact that there
was a crisis, nay a vacuum, in the executive
leadership which made the government rife for
seizure by lawless elements. The presidency
was up for grabs, and it was imperative that the
rule of succession in the Constitution be
enforced.
But who is to declare the President's permanent
disability, petitioner asks? The answer was given
by petitioner himself when he said that he was
already tired and wanted no more of popular
demonstrations and rallies against him; when he
and his advisers negotiated with respondent
Gloria Macapagal-Arroyo's advisers for a
transition of powers from him to her; when
petitioner's own Executive Secretary declared
that petitioner was not only in a corner but was
down.
Nor is it correct for petitioner to say that the
present situation is similar to our situation during
the period (from 1941 to 1943) of our occupation
by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel.
This is turning somersault with history. The
Philippines had two presidents at that time for
the simple reason that there were then two
governments — the de facto government
established by Japan as belligerent occupant, of
which Laurel was president, and the de
jure Commonwealth Government in exile of
President Manuel L. Quezon. That a belligerent
occupant has a right to establish a government
in enemy territory is a recognized principle of
international law.18 But today we have only one
government, and it is the one set up in the 1987
Constitution. Hence, there can only be one
President.
Having reached the conclusion that petitioner
Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of
immunity from suit. I believe in the canon of
adjudication that the Court should not formulate
a rule of constitutional law broader than is
471 | PART 1 C O N S T I 1 FULLTEXT
required by the precise facts to which it is 12
Id. at 25-26 (concurring and
applied. dissenting).

The only question left for resolution is whether Memorandum for Petitioner, G.R. Nos,
13

there was massive prejudicial publicity attending 146710-15, pp. 5-6.

the investigation by the Ombudsman of the
criminal charges against petitioner. The test in 14
Petition, G.R. No. 146738, p. 13.
this jurisdiction is whether there has been
"actual, not merely possible, prejudice"19 Edgardo Angara, Erap's Final Hours
15
caused to petitioner as a result of publicity. Told, Philippine Daily Inquirier, p. A6,
There has been no proof of this, and so I think
February 6, 2001.
this claim should simply be dismissed.
16
Id. (emphasis added).
For the foregoing reasons, I vote to dismiss the
petitions in these cases. 17
Emphasis added.

18
Co Kim Cham v. Valdez, 75 Phil. 113
(1945); Peralta v. Director of Prisons, 75
(Sgd.)
Phil. 285 (1945); Laurel v. Misa, 77 Phil.
856 (1947).
VICENTE V. MENDOZA
See Martelino v. Alejandro, 32 SCRA
19

Associate Justice 106 (1970).

Footnotes

1
Joint Memorandum of the Secretary of
Justice and Solicitor General, p. 15.

2
Lawyers League for a Better
Philippines v. President Corazon C.
Aquino, G.R. No. 73746, May 22, 1986.

3
Letter of Associate Justice Reynato S.
Puno, 210 SCRA 589, 597 (1992).

4
Luther v. Borden, 7 How. 1 (1848).

5
Political Questions, 38 Harv. L. Rev.
296, 305 (1925).

6
50 SCRA 30 (1973).

7
104 SCRA ! (1981).

8
104 SCRA 59 (1981).

9
Joint Memorandum of the Secretary of
Justice and Solicitor General, p. 2.

10
83 Phil. 17 (1949).

11
83 Phil. At 76 (Perfecto, J.,
concurring).

472 | PART 1 C O N S T I 1 FULLTEXT

 EN BANC
G.R. No. 185572 February 7, 2012
CHINA NATIONAL MACHINERY &
EQUIPMENT CORP. (GROUP), Petitioner,
vs.
HON. CESAR D. SANTAMARIA, in his official
capacity as Presiding Judge of Branch 145,
Regional Trial Court of Makati City,
HERMINIO HARRY L. ROQUE, JR., JOEL R.
BUTUYAN, ROGER R. RAYEL, ROMEL R.
BAGARES, CHRISTOPHER FRANCISCO C.
BOLASTIG, LEAGUE OF URBAN POOR FOR
ACTION (LUPA), KILUSAN NG MARALITA SA
MEYCAUAYAN (KMM-LUPA CHAPTER),
DANILO M. CALDERON, VICENTE C. ALBAN,
MERLYN M. VAAL, LOLITA S. QUINONES,
RICARDO D. LANOZO, JR., CONCHITA G.
GOZO, MA. TERESA D. ZEPEDA, JOSEFINA
A. LANOZO, and SERGIO C. LEGASPI, JR.,
KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), EDY CLERIGO, RAMMIL
DINGAL, NELSON B. TERRADO, CARMEN
DEUNIDA, and EDUARDO
LEGSON, Respondents.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with
Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Preliminary
Injunction assailing the 30 September 2008
Decision and 5 December 2008 Resolution of
the Court of Appeals (CA) in CA–G.R. SP No.
103351. 1
On 14 September 2002, petitioner China
National Machinery & Equipment Corp. (Group)
(CNMEG), represented by its chairperson, Ren
Hongbin, entered into a Memorandum of
Understanding with the North Luzon Railways
Corporation (Northrail), represented by its
president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from
Manila to San Fernando, La Union (the Northrail
Project).
2
On 30 August 2003, the Export Import Bank of
China (EXIM Bank) and the Department of
Finance of the Philippines (DOF) entered into a
Memorandum of Understanding (Aug 30 MOU),
wherein China agreed to extend Preferential
Buyer’s Credit to the Philippine government to
finance the Northrail Project. The Chinese
3
government designated EXIM Bank as the
lender, while the Philippine government named
the DOF as the borrower. Under the Aug 30
4
MOU, EXIM Bank agreed to extend an amount
not exceeding USD 400,000,000 in favor of the
DOF, payable in 20 years, with a 5-year grace
period, and at the rate of 3% per annum. 5
On 1 October 2003, the Chinese Ambassador to
the Philippines, Wang Chungui (Amb. Wang),
wrote a letter to DOF Secretary Jose Isidro
Camacho (Sec. Camacho) informing him of
CNMEG’s designation as the Prime Contractor
for the Northrail Project.6
On 30 December 2003, Northrail and CNMEG
executed a Contract Agreement for the
construction of Section I, Phase I of the North
Luzon Railway System from Caloocan to
Malolos on a turnkey basis (the Contract
Agreement). The contract price for the Northrail
7
Project was pegged at USD 421,050,000. 8
On 26 February 2004, the Philippine government
and EXIM Bank entered into a counterpart
financial agreement – Buyer Credit Loan
Agreement No. BLA 04055 (the Loan
Agreement). In the Loan Agreement, EXIM Bank
9
agreed to extend Preferential Buyer’s Credit in
the amount of USD 400,000,000 in favor of the
Philippine government in order to finance the
construction of Phase I of the Northrail Project. 10
On 13 February 2006, respondents filed a
Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary
Hearing to Determine the Existence of Facts and
Circumstances Justifying the Issuance of Writs
of Preliminary Prohibitory and Mandatory
Injunction and/or TRO against CNMEG, the
Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the
National Economic Development Authority and
Northrail. The case was docketed as Civil Case
11
No. 06-203 before the Regional Trial Court,
National Capital Judicial Region, Makati City,
Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract
Agreement and the Loan Agreement were void
for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government
Procurement Reform Act; (c) Presidential
Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive
Order No. 292, otherwise known as the
Administrative Code. 12
RTC Br. 145 issued an Order dated 17 March
2006 setting the case for hearing on the
issuance of injunctive reliefs. On 29 March
13
2006, CNMEG filed an Urgent Motion for
Reconsideration of this Order. Before RTC Br.
14
473 | PART 1 C O N S T I 1 FULLTEXT
145 could rule thereon, CNMEG filed a Motion to
Dismiss dated 12 April 2006, arguing that the
trial court did not have jurisdiction over (a) its
person, as it was an agent of the Chinese
government, making it immune from suit, and (b)
the subject matter, as the Northrail Project was a
product of an executive agreement. 15
On 15 May 2007, RTC Br. 145 issued an
Omnibus Order denying CNMEG’s Motion to
Dismiss and setting the case for summary
hearing to determine whether the injunctive
reliefs prayed for should be issued. CNMEG
16
then filed a Motion for Reconsideration, which
17
was denied by the trial court in an Order dated
10 March 2008. Thus, CNMEG filed before the
18
CA a Petition for Certiorari with Prayer for the
Issuance of TRO and/or Writ of Preliminary
Injunction dated 4 April 2008. 19
In the assailed Decision dated 30 September
2008, the appellate court dismissed the Petition
for Certiorari. Subsequently, CNMEG filed a
20
Motion for Reconsideration, which was denied
21
by the CA in a Resolution dated 5 December
2008. Thus, CNMEG filed the instant Petition for
22
Review on Certiorari dated 21 January 2009,
raising the following issues: 23
Whether or not petitioner CNMEG is an agent of
the sovereign People’s Republic of China.
Whether or not the Northrail contracts are
products of an executive agreement between
two sovereign states.
Whether or not the certification from the
Department of Foreign Affairs is necessary
under the foregoing circumstances.
Whether or not the act being undertaken by
petitioner CNMEG is an act jure imperii.
Whether or not the Court of Appeals failed to
avoid a procedural limbo in the lower court.
Whether or not the Northrail Project is subject to
competitive public bidding.
Whether or not the Court of Appeals ignored the
ruling of this Honorable Court in the Neri case.
CNMEG prays for the dismissal of Civil Case
No. 06-203 before RTC Br. 145 for lack of
jurisdiction. It likewise requests this Court for the
issuance of a TRO and, later on, a writ of
preliminary injunction to restrain public
respondent from proceeding with the disposition
of Civil Case No. 06-203.
The crux of this case boils down to two main
issues, namely:
1. Whether CNMEG is entitled to
immunity, precluding it from being sued
before a local court.
2. Whether the Contract Agreement is
an executive agreement, such that it
cannot be questioned by or before a
local court.
First issue: Whether CNMEG is entitled to
immunity
This Court explained the doctrine of sovereign
immunity in Holy See v. Rosario, to wit:
24
There are two conflicting concepts of sovereign
immunity, each widely held and firmly
established. According to the classical or
absolute theory, a sovereign cannot, without
its consent, be made a respondent in the
courts of another sovereign. According to the
newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but
not with regard to private acts or acts jure
gestionis. (Emphasis supplied; citations
omitted.)
xxx xxx xxx
The restrictive theory came about because of
the entry of sovereign states into purely
commercial activities remotely connected with
the discharge of governmental functions. This is
particularly true with respect to the Communist
states which took control of nationalized
business activities and international trading.
In JUSMAG v. National Labor Relations
Commission, this Court affirmed the Philippines’
25
adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has
undergone further metamorphosis. The view
evolved that the existence of a contract does
not, per se, mean that sovereign states may, at
all times, be sued in local courts. The complexity
of relationships between sovereign states,
brought about by their increasing commercial
activities, mothered a more restrictive application
of the doctrine.
xxx xxx xxx
As it stands now, the application of the doctrine
of immunity from suit has been restricted to
474 | PART 1 C O N S T I 1 FULLTEXT
 sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be
extended to commercial, private and proprietary
acts (jure gestionis). (Emphasis supplied.)
26
Since the Philippines adheres to the restrictive
theory, it is crucial to ascertain the legal nature
of the act involved – whether the entity claiming
immunity performs governmental, as opposed to
proprietary, functions. As held in United States
of America v. Ruiz – 27
The restrictive application of State immunity is
proper only when the proceedings arise out of
commercial transactions of the foreign
sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to
have descended to the level of an individual and
can thus be deemed to have tacitly given its
consent to be sued only when it enters into
business contracts. It does not apply where the
contract relates to the exercise of its sovereign
functions.28
A. CNMEG is engaged in a proprietary activity.
A threshold question that must be answered is
whether CNMEG performs governmental or
proprietary functions. A thorough examination of
the basic facts of the case would show that
CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement
for the purpose of constructing the Luzon
Railways, viz: 29
WHEREAS the Employer (Northrail) desired to
construct the railways form Caloocan to Malolos,
section I, Phase I of Philippine North Luzon
Railways Project (hereinafter referred to as THE
PROJECT);
AND WHEREAS the Contractor has offered to
provide the Project on Turnkey basis, including
design, manufacturing, supply, construction,
commissioning, and training of the Employer’s
personnel;
AND WHEREAS the Loan Agreement of the
Preferential Buyer’s Credit between Export-
Import Bank of China and Department of
Finance of Republic of the Philippines;
NOW, THEREFORE, the parties agree to sign
this Contract for the Implementation of the
Project.
The above-cited portion of the Contract
Agreement, however, does not on its own reveal
whether the construction of the Luzon railways
was meant to be a proprietary endeavor. In
order to fully understand the intention behind
and the purpose of the entire undertaking, the
Contract Agreement must not be read in
isolation. Instead, it must be construed in
conjunction with three other documents
executed in relation to the Northrail Project,
namely: (a) the Memorandum of Understanding
dated 14 September 2002 between Northrail and
CNMEG; (b) the letter of Amb. Wang dated 1
30
October 2003 addressed to Sec. Camacho; and31
(c) the Loan Agreement. 32
1. Memorandum of Understanding dated 14
September 2002
The Memorandum of Understanding dated 14
September 2002 shows that CNMEG sought the
construction of the Luzon Railways as a
proprietary venture. The relevant parts thereof
read:
WHEREAS, CNMEG has the financial capability,
professional competence and technical expertise
to assess the state of the [Main Line North
(MLN)] and recommend implementation plans as
well as undertake its rehabilitation and/or
modernization;
WHEREAS, CNMEG has expressed interest in
the rehabilitation and/or modernization of the
MLN from Metro Manila to San Fernando, La
Union passing through the provinces of Bulacan,
Pampanga, Tarlac, Pangasinan and La Union
(the ‘Project’);
WHEREAS, the NORTHRAIL CORP. welcomes
CNMEG’s proposal to undertake a Feasibility
Study (the "Study") at no cost to NORTHRAIL
CORP.;
WHEREAS, the NORTHRAIL CORP. also
welcomes CNMEG’s interest in undertaking the
Project with Supplier’s Credit and intends to
employ CNMEG as the Contractor for the
Project subject to compliance with Philippine and
Chinese laws, rules and regulations for the
selection of a contractor;
WHEREAS, the NORTHRAIL CORP. considers
CNMEG’s proposal advantageous to the
Government of the Republic of the Philippines
and has therefore agreed to assist CNMEG in
the conduct of the aforesaid Study;
xxx xxx xxx
II. APPROVAL PROCESS
475 | PART 1 C O N S T I 1 FULLTEXT
2.1 As soon as possible after completion and
presentation of the Study in accordance with
Paragraphs 1.3 and 1.4 above and in
compliance with necessary governmental laws,
rules, regulations and procedures required from
both parties, the parties shall commence the
preparation and negotiation of the terms and
conditions of the Contract (the "Contract") to be
entered into between them on the
implementation of the Project. The parties shall
use their best endeavors to formulate and
finalize a Contract with a view to signing the
Contract within one hundred twenty (120) days
from CNMEG’s presentation of the
Study. (Emphasis supplied)
33
Clearly, it was CNMEG that initiated the
undertaking, and not the Chinese government.
The Feasibility Study was conducted not
because of any diplomatic gratuity from or
exercise of sovereign functions by the Chinese
government, but was plainly a business strategy
employed by CNMEG with a view to securing
this commercial enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government,
initiated the Northrail Project was confirmed by
Amb. Wang in his letter dated 1 October 2003,
thus:
1. CNMEG has the proven competence
and capability to undertake the Project
as evidenced by the ranking of 42 given
by the ENR among 225 global
construction companies.
2. CNMEG already signed an MOU with
the North Luzon Railways Corporation
last September 14, 2000 during the visit
of Chairman Li Peng. Such being the
case, they have already established an
initial working relationship with your
North Luzon Railways Corporation. This
would categorize CNMEG as the state
corporation within the People’s Republic
of China which initiated our
Government’s involvement in the
Project.
3. Among the various state corporations
of the People’s Republic of China, only
CNMEG has the advantage of being
fully familiar with the current
requirements of the Northrail Project
having already accomplished a
Feasibility Study which was used as
inputs by the North Luzon Railways
Corporation in the approvals (sic)
process required by the Republic of the
Philippines. (Emphasis supplied.)
34
Thus, the desire of CNMEG to secure the
Northrail Project was in the ordinary or regular
course of its business as a global construction
company. The implementation of the Northrail
Project was intended to generate profit for
CNMEG, with the Contract Agreement placing a
contract price of USD 421,050,000 for the
venture. The use of the term "state corporation"
35
to refer to CNMEG was only descriptive of its
nature as a government-owned and/or -
controlled corporation, and its assignment as the
Primary Contractor did not imply that it was
acting on behalf of China in the performance of
the latter’s sovereign functions. To imply
otherwise would result in an absurd situation, in
which all Chinese corporations owned by the
state would be automatically considered as
performing governmental activities, even if they
are clearly engaged in commercial or proprietary
pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the
Aug 30 MOU on the financing of the Northrail
Project was signed by the Philippine and
Chinese governments, and its assignment as the
Primary Contractor meant that it was bound to
perform a governmental function on behalf of
China. However, the Loan Agreement, which
originated from the same Aug 30 MOU, belies
this reasoning, viz:
Article 11. xxx (j) Commercial Activity The
execution and delivery of this Agreement by the
Borrower constitute, and the Borrower’s
performance of and compliance with its
obligations under this Agreement will
constitute, private and commercial acts done
and performed for commercial purposes
under the laws of the Republic of the
Philippines and neither the Borrower nor any
of its assets is entitled to any immunity or
privilege (sovereign or otherwise) from suit,
execution or any other legal process with
respect to its obligations under this
Agreement, as the case may be, in any
jurisdiction. Notwithstanding the foregoing, the
Borrower does not waive any immunity with
respect of its assets which are (i) used by a
diplomatic or consular mission of the Borrower
and (ii) assets of a military character and under
control of a military authority or defense agency
and (iii) located in the Philippines and dedicated
to public or governmental use (as distinguished
from patrimonial assets or assets dedicated to
commercial use). (Emphasis supplied.)
476 | PART 1 C O N S T I 1 FULLTEXT
(k) Proceedings to Enforce Agreement In any
proceeding in the Republic of the Philippines to
enforce this Agreement, the choice of the laws of
the People’s Republic of China as the governing
law hereof will be recognized and such law will
be applied. The waiver of immunity by the
Borrower, the irrevocable submissions of the
Borrower to the non-exclusive jurisdiction of the
courts of the People’s Republic of China and the
appointment of the Borrower’s Chinese Process
Agent is legal, valid, binding and enforceable
and any judgment obtained in the People’s
Republic of China will be if introduced, evidence
for enforcement in any proceedings against the
Borrower and its assets in the Republic of the
Philippines provided that (a) the court rendering
judgment had jurisdiction over the subject matter
of the action in accordance with its jurisdictional
rules, (b) the Republic had notice of the
proceedings, (c) the judgment of the court was
not obtained through collusion or fraud, and (d)
such judgment was not based on a clear mistake
of fact or law.
36
Further, the Loan Agreement likewise contains
this express waiver of immunity:
15.5 Waiver of Immunity The Borrower
irrevocably and unconditionally waives, any
immunity to which it or its property may at any
time be or become entitled, whether
characterized as sovereign immunity or
otherwise, from any suit, judgment, service of
process upon it or any agent, execution on
judgment, set-off, attachment prior to judgment,
attachment in aid of execution to which it or its
assets may be entitled in any legal action or
proceedings with respect to this Agreement or
any of the transactions contemplated hereby or
hereunder. Notwithstanding the foregoing, the
Borrower does not waive any immunity in
respect of its assets which are (i) used by a
diplomatic or consular mission of the Borrower,
(ii) assets of a military character and under
control of a military authority or defense agency
and (iii) located in the Philippines and dedicated
to a public or governmental use (as
distinguished from patrimonial assets or assets
dedicated to commercial use). 37
Thus, despite petitioner’s claim that the EXIM
Bank extended financial assistance to Northrail
because the bank was mandated by the Chinese
government, and not because of any motivation
to do business in the Philippines, it is clear from
38
the foregoing provisions that the Northrail
Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered
into between EXIM Bank and the Philippine
government, while the Contract Agreement was
between Northrail and CNMEG. Although the
Contract Agreement is silent on the classification
of the legal nature of the transaction, the
foregoing provisions of the Loan Agreement,
which is an inextricable part of the entire
undertaking, nonetheless reveal the intention of
the parties to the Northrail Project to classify the
whole venture as commercial or proprietary in
character.
Thus, piecing together the content and tenor of
the Contract Agreement, the Memorandum of
Understanding dated 14 September 2002, Amb.
Wang’s letter dated 1 October 2003, and the
Loan Agreement would reveal the desire of
CNMEG to construct the Luzon Railways in
pursuit of a purely commercial activity performed
in the ordinary course of its business.
B. CNMEG failed to adduce evidence that it is
immune from suit under Chinese law.
Even assuming arguendo that CNMEG performs
governmental functions, such claim does not
automatically vest it with immunity. This view
finds support in Malong v. Philippine National
Railways, in which this Court held that
"(i)mmunity from suit is determined by the
character of the objects for which the entity was
organized." 39
In this regard, this Court’s ruling in Deutsche
Gesellschaft Für Technische Zusammenarbeit
(GTZ) v. CA must be examined. In Deutsche
40
Gesellschaft, Germany and the Philippines
entered into a Technical Cooperation
Agreement, pursuant to which both signed an
arrangement promoting the Social Health
Insurance–Networking and Empowerment
(SHINE) project. The two governments named
their respective implementing organizations: the
Department of Health (DOH) and the Philippine
Health Insurance Corporation (PHIC) for the
Philippines, and GTZ for the implementation of
Germany’s contributions. In ruling that GTZ was
not immune from suit, this Court held:
The arguments raised by GTZ and the [Office of
the Solicitor General (OSG)] are rooted in
several indisputable facts. The SHINE project
was implemented pursuant to the bilateral
agreements between the Philippine and German
governments. GTZ was tasked, under the 1991
agreement, with the implementation of the
contributions of the German government. The
activities performed by GTZ pertaining to the
SHINE project are governmental in nature,
related as they are to the promotion of health
insurance in the Philippines. The fact that GTZ
entered into employment contracts with the
477 | PART 1 C O N S T I 1 FULLTEXT
private respondents did not disqualify it from
invoking immunity from suit, as held in cases
such as Holy See v. Rosario, Jr., which set forth
what remains valid doctrine:
Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of
the inquiry. The logical question is whether the
foreign state is engaged in the activity in the
regular course of business. If the foreign state is
not engaged regularly in a business or trade, the
particular act or transaction must then be tested
by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not
undertaken for gain or profit.
Beyond dispute is the tenability of the comment
points (sic) raised by GTZ and the OSG that
GTZ was not performing proprietary functions
notwithstanding its entry into the particular
employment contracts. Yet there is an equally
fundamental premise which GTZ and the OSG
fail to address, namely: Is GTZ, by conception,
able to enjoy the Federal Republic’s immunity
from suit?
The principle of state immunity from suit,
whether a local state or a foreign state, is
reflected in Section 9, Article XVI of the
Constitution, which states that "the State may
not be sued without its consent." Who or what
consists of "the State"? For one, the doctrine is
available to foreign States insofar as they are
sought to be sued in the courts of the local
State, necessary as it is to avoid "unduly vexing
the peace of nations."
If the instant suit had been brought directly
against the Federal Republic of Germany, there
would be no doubt that it is a suit brought
against a State, and the only necessary inquiry
is whether said State had consented to be sued.
However, the present suit was brought against
GTZ. It is necessary for us to understand what
precisely are the parameters of the legal
personality of GTZ.
Counsel for GTZ characterizes GTZ as "the
implementing agency of the Government of
the Federal Republic of Germany," a depiction
similarly adopted by the OSG. Assuming that the
characterization is correct, it does not
automatically invest GTZ with the ability to
invoke State immunity from suit. The
distinction lies in whether the agency is
incorporated or unincorporated.
xxx xxx xxx
State immunity from suit may be waived by
general or special law. The special law can take
the form of the original charter of the
incorporated government agency. Jurisprudence
is replete with examples of incorporated
government agencies which were ruled not
entitled to invoke immunity from suit, owing to
provisions in their charters manifesting their
consent to be sued.
xxx xxx xxx
It is useful to note that on the part of the
Philippine government, it had designated two
entities, the Department of Health and the
Philippine Health Insurance Corporation (PHIC),
as the implementing agencies in behalf of the
Philippines. The PHIC was established under
Republic Act No. 7875, Section 16 (g) of which
grants the corporation the power "to sue and be
sued in court." Applying the previously cited
jurisprudence, PHIC would not enjoy immunity
from suit even in the performance of its functions
connected with SHINE, however, (sic)
governmental in nature as (sic) they may be.
Is GTZ an incorporated agency of the
German government? There is some mystery
surrounding that question. Neither GTZ nor
the OSG go beyond the claim that petitioner
is "the implementing agency of the
Government of the Federal Republic of
Germany." On the other hand, private
respondents asserted before the Labor Arbiter
that GTZ was "a private corporation engaged in
the implementation of development projects."
The Labor Arbiter accepted that claim in his
Order denying the Motion to Dismiss, though he
was silent on that point in his Decision.
Nevertheless, private respondents argue in their
Comment that the finding that GTZ was a private
corporation "was never controverted, and is
therefore deemed admitted." In its Reply, GTZ
controverts that finding, saying that it is a matter
of public knowledge that the status of petitioner
GTZ is that of the "implementing agency," and
not that of a private corporation.
In truth, private respondents were unable to
adduce any evidence to substantiate their claim
that GTZ was a "private corporation," and the
Labor Arbiter acted rashly in accepting such
claim without explanation. But neither has GTZ
supplied any evidence defining its legal
nature beyond that of the bare descriptive
"implementing agency." There is no doubt
that the 1991 Agreement designated GTZ as
the "implementing agency" in behalf of the
German government. Yet the catch is that
such term has no precise definition that is
responsive to our concerns. Inherently, an
478 | PART 1 C O N S T I 1 FULLTEXT
agent acts in behalf of a principal, and the
GTZ can be said to act in behalf of the
German state. But that is as far as
"implementing agency" could take us. The
term by itself does not supply whether GTZ
is incorporated or unincorporated, whether it
is owned by the German state or by private
interests, whether it has juridical personality
independent of the German government or
none at all.
xxx xxx xxx
Again, we are uncertain of the corresponding
legal implications under German law
surrounding "a private company owned by
the Federal Republic of Germany." Yet taking
the description on face value, the apparent
equivalent under Philippine law is that of a
corporation organized under the Corporation
Code but owned by the Philippine
government, or a government-owned or
controlled corporation without original
charter. And it bears notice that Section 36 of
the Corporate Code states that "[e]very
corporation incorporated under this Code
has the power and capacity x x x to sue and
be sued in its corporate name."
It is entirely possible that under German law, an
entity such as GTZ or particularly GTZ itself has
not been vested or has been specifically
deprived the power and capacity to sue and/or
be sued. Yet in the proceedings below and
before this Court, GTZ has failed to establish
that under German law, it has not consented
to be sued despite it being owned by the
Federal Republic of Germany. We adhere to
the rule that in the absence of evidence to
the contrary, foreign laws on a particular
subject are presumed to be the same as
those of the Philippines, and following the
most intelligent assumption we can gather,
GTZ is akin to a governmental owned or
controlled corporation without original
charter which, by virtue of the Corporation
Code, has expressly consented to be
sued. At the very least, like the Labor Arbiter
and the Court of Appeals, this Court has no
basis in fact to conclude or presume that GTZ
enjoys immunity from suit. (Emphasis supplied.)
41
Applying the foregoing ruling to the case at bar,
it is readily apparent that CNMEG cannot claim
immunity from suit, even if it contends that it
performs governmental functions. Its designation
as the Primary Contractor does not automatically
grant it immunity, just as the term "implementing
agency" has no precise definition for purposes of
ascertaining whether GTZ was immune from
suit. Although CNMEG claims to be a
government-owned corporation, it failed to
adduce evidence that it has not consented to be
sued under Chinese law. Thus, following this
Court’s ruling in Deutsche Gesellschaft, in the
absence of evidence to the contrary, CNMEG is
to be presumed to be a government-owned and
-controlled corporation without an original
charter. As a result, it has the capacity to sue
and be sued under Section 36 of the Corporation
Code.
C. CNMEG failed to present a certification from
the Department of Foreign Affairs.
In Holy See, this Court reiterated the oft-cited
42
doctrine that the determination by the Executive
that an entity is entitled to sovereign or
diplomatic immunity is a political question
conclusive upon the courts, to wit:
In Public International Law, when a state or
international agency wishes to plead sovereign
or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it
is sued to convey to the court that said
defendant is entitled to immunity.
xxx xxx xxx
In the Philippines, the practice is for the foreign
government or the international organization to
first secure an executive endorsement of its
claim of sovereign or diplomatic immunity. But
how the Philippine Foreign Office conveys its
endorsement to the courts varies.
In International Catholic Migration Commission
v. Calleja, 190 SCRA 130 (1990), the Secretary
of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing
the latter that the respondent-employer could not
be sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48
SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the
U.S. Embassy asked the Secretary of Foreign
Affairs to request the Solicitor General to make,
in behalf of the Commander of the United States
Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor
General embodied the "suggestion" in a
Manifestation and Memorandum as amicus
curiae.
In the case at bench, the Department of Foreign
Affairs, through the Office of Legal Affairs moved
with this Court to be allowed to intervene on the
side of petitioner. The Court allowed the said
Department to file its memorandum in support of
petitioner’s claim of sovereign immunity.
479 | PART 1 C O N S T I 1 FULLTEXT
In some cases, the defense of sovereign
immunity was submitted directly to the local
courts by the respondents through their private
counsels (Raquiza v. Bradford, 75 Phil. 50
[1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of
America v. Guinto, 182 SCRA 644 [1990] and
companion cases). In cases where the foreign
states bypass the Foreign Office, the courts can
inquire into the facts and make their own
determination as to the nature of the acts and
transactions involved. (Emphasis supplied.)
43
The question now is whether any agency of the
Executive Branch can make a determination of
immunity from suit, which may be considered as
conclusive upon the courts. This Court, in
Department of Foreign Affairs (DFA) v. National
Labor Relations Commission
(NLRC), emphasized the DFA’s competence
44
and authority to provide such necessary
determination, to wit:
The DFA’s function includes, among its other
mandates, the determination of persons and
institutions covered by diplomatic immunities, a
determination which, when challenge, (sic)
entitles it to seek relief from the court so as not
to seriously impair the conduct of the country's
foreign relations. The DFA must be allowed to
plead its case whenever necessary or advisable
to enable it to help keep the credibility of the
Philippine government before the international
community. When international agreements are
concluded, the parties thereto are deemed to
have likewise accepted the responsibility of
seeing to it that their agreements are duly
regarded. In our country, this task falls
principally of (sic) the DFA as being the highest
executive department with the competence and
authority to so act in this aspect of the
international arena. (Emphasis supplied.)
45
Further, the fact that this authority is exclusive to
the DFA was also emphasized in this Court’s
ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both
of his rulings, noted that it was imperative for
petitioners to secure from the Department of
Foreign Affairs "a certification of respondents’
diplomatic status and entitlement to diplomatic
privileges including immunity from suits." The
requirement might not necessarily be imperative.
However, had GTZ obtained such certification
from the DFA, it would have provided factual
basis for its claim of immunity that would, at the
very least, establish a disputable evidentiary
presumption that the foreign party is indeed
immune which the opposing party will have to
overcome with its own factual evidence. We do
not see why GTZ could not have secured such
certification or endorsement from the DFA for
purposes of this case. Certainly, it would have
been highly prudential for GTZ to obtain the
same after the Labor Arbiter had denied the
motion to dismiss. Still, even at this juncture, we
do not see any evidence that the DFA, the office
of the executive branch in charge of our
diplomatic relations, has indeed endorsed GTZ’s
claim of immunity. It may be possible that GTZ
tried, but failed to secure such certification, due
to the same concerns that we have discussed
herein.
Would the fact that the Solicitor General has
endorsed GTZ’s claim of State’s immunity from
suit before this Court sufficiently substitute for
the DFA certification? Note that the rule in public
international law quoted in Holy See referred to
endorsement by the Foreign Office of the State
where the suit is filed, such foreign office in the
Philippines being the Department of Foreign
Affairs. Nowhere in the Comment of the OSG is
it manifested that the DFA has endorsed GTZ’s
claim, or that the OSG had solicited the DFA’s
views on the issue. The arguments raised by the
OSG are virtually the same as the arguments
raised by GTZ without any indication of any
special and distinct perspective maintained by
the Philippine government on the issue. The
Comment filed by the OSG does not inspire the
same degree of confidence as a certification
from the DFA would have elicited. (Emphasis
46
supplied.)
In the case at bar, CNMEG offers the
Certification executed by the Economic and
Commercial Office of the Embassy of the
People’s Republic of China, stating that the
Northrail Project is in pursuit of a sovereign
activity. Surely, this is not the kind of certification
47
that can establish CNMEG’s entitlement to
immunity from suit, as Holy See unequivocally
refers to the determination of the "Foreign Office
of the state where it is sued."
Further, CNMEG also claims that its immunity
from suit has the executive endorsement of both
the OSG and the Office of the Government
Corporate Counsel (OGCC), which must be
respected by the courts. However, as expressly
enunciated in Deutsche Gesellschaft, this
determination by the OSG, or by the OGCC for
that matter, does not inspire the same degree of
confidence as a DFA certification. Even with a
DFA certification, however, it must be
remembered that this Court is not precluded
from making an inquiry into the intrinsic
correctness of such certification.
480 | PART 1 C O N S T I 1 FULLTEXT
D. An agreement to submit any dispute to
arbitration may be construed as an implicit
waiver of immunity from suit.
In the United States, the Foreign Sovereign
Immunities Act of 1976 provides for a waiver by
implication of state immunity. In the said law, the
agreement to submit disputes to arbitration in a
foreign country is construed as an implicit waiver
of immunity from suit. Although there is no
similar law in the Philippines, there is reason to
apply the legal reasoning behind the waiver in
this case.
The Conditions of Contract, which is an integral
48
part of the Contract Agreement, states:
49
33. SETTLEMENT OF DISPUTES AND
ARBITRATION
33.1. Amicable Settlement
Both parties shall attempt to amicably settle all
disputes or controversies arising from this
Contract before the commencement of
arbitration.
33.2. Arbitration
All disputes or controversies arising from this
Contract which cannot be settled between the
Employer and the Contractor shall be submitted
to arbitration in accordance with the UNCITRAL
Arbitration Rules at present in force and as may
be amended by the rest of this Clause. The
appointing authority shall be Hong Kong
International Arbitration Center. The place of
arbitration shall be in Hong Kong at Hong Kong
International Arbitration Center (HKIAC).
Under the above provisions, if any dispute arises
between Northrail and CNMEG, both parties are
bound to submit the matter to the HKIAC for
arbitration. In case the HKIAC makes an arbitral
award in favor of Northrail, its enforcement in the
Philippines would be subject to the Special
Rules on Alternative Dispute Resolution (Special
Rules). Rule 13 thereof provides for the
Recognition and Enforcement of a Foreign
Arbitral Award. Under Rules 13.2 and 13.3 of the
Special Rules, the party to arbitration wishing to
have an arbitral award recognized and enforced
in the Philippines must petition the proper
regional trial court (a) where the assets to be
attached or levied upon is located; (b) where the
acts to be enjoined are being performed; (c) in
the principal place of business in the Philippines
of any of the parties; (d) if any of the parties is
an individual, where any of those individuals
resides; or (e) in the National Capital Judicial
Region.
From all the foregoing, it is clear that CNMEG
has agreed that it will not be afforded immunity
from suit. Thus, the courts have the competence
and jurisdiction to ascertain the validity of the
Contract Agreement.
Second issue: Whether the Contract
Agreement is an executive agreement
Article 2(1) of the Vienna Convention on the Law
of Treaties (Vienna Convention) defines a treaty
as follows:
[A]n international agreement concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments
and whatever its particular designation.
In Bayan Muna v. Romulo, this Court held that
an executive agreement is similar to a treaty,
except that the former (a) does not require
legislative concurrence; (b) is usually less
formal; and (c) deals with a narrower range of
subject matters. 50
Despite these differences, to be considered an
executive agreement, the following three
requisites provided under the Vienna Convention
must nevertheless concur: (a) the agreement
must be between states; (b) it must be written;
and (c) it must governed by international law.
The first and the third requisites do not obtain in
the case at bar.
A. CNMEG is neither a government nor a
government agency.
The Contract Agreement was not concluded
between the Philippines and China, but between
Northrail and CNMEG. By the terms of the
51
Contract Agreement, Northrail is a government-
owned or -controlled corporation, while CNMEG
is a corporation duly organized and created
under the laws of the People’s Republic of
China. Thus, both Northrail and CNMEG
52
entered into the Contract Agreement as entities
with personalities distinct and separate from the
Philippine and Chinese governments,
respectively.
Neither can it be said that CNMEG acted as
agent of the Chinese government. As previously
discussed, the fact that Amb. Wang, in his letter
dated 1 October 2003, described CNMEG as a
53
"state corporation" and declared its designation
481 | PART 1 C O N S T I 1 FULLTEXT
as the Primary Contractor in the Northrail Project WE CONCUR:
did not mean it was to perform sovereign
functions on behalf of China. That label was only RENATO C. CORONA
descriptive of its nature as a state-owned Chief Justice
corporation, and did not preclude it from
engaging in purely commercial or proprietary
ventures. ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
B. The Contract Agreement is to be governed by Associate Justice Associate Justice
Philippine law.
TERESITA J.
Article 2 of the Conditions of Contract, which
54 ARTURO D.
LEONARDO-DE
under Article 1.1 of the Contract Agreement is BRION
CASTRO
an integral part of the latter, states: Associate Justice
Associate Justice

APPLICABLE LAW AND GOVERNING DIOSDADO M. LUCAS P.

LANGUAGE PERALTA BERSAMIN
Associate Justice Associate Justice
The contract shall in all respects be read and
construed in accordance with the laws of the
Philippines. MARIANO C. DEL ROBERTO A.
CASTILLO ABAD
Associate Justice Associate Justice
The contract shall be written in English
language. All correspondence and other
documents pertaining to the Contract which are MARTIN S. JOSE PORTUGAL
exchanged by the parties shall be written in VILLARAMA, JR. PEREZ
English language. Associate Justice Associate Justice

Since the Contract Agreement explicitly provides JOSE C. BIENVENIDO L.

that Philippine law shall be applicable, the MENDOZA REYES
parties have effectively conceded that their Associate Justice Associate Justice
rights and obligations thereunder are not
governed by international law.
ESTELA M. PERLAS-BERNABE
It is therefore clear from the foregoing reasons Associate Justice
that the Contract Agreement does not partake of
the nature of an executive agreement. It is CERTIFICATION
merely an ordinary commercial contract that can
be questioned before the local courts. Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
WHEREFORE, the instant Petition is DENIED. above Decision had been reached in
Petitioner China National Machinery & consultation before the case was assigned to the
Equipment Corp. (Group) is not entitled to writer of the opinion of the Court.
immunity from suit, and the Contract Agreement
is not an executive agreement. CNMEG’s prayer RENATO C. CORONA
for the issuance of a TRO and/or Writ of Chief Justice
Preliminary Injunction is DENIED for being moot
and academic. This case is REMANDED to the
Regional Trial Court of Makati, Branch 145, for
further proceedings as regards the validity of the
contracts subject of Civil Case No. 06-203.
Footnotes
No pronouncement on costs of suit.
China National Machinery & Equipment
1

Corporation (Group) v. Hon. Cesar D.

SO ORDERED. Santamaria, et al.

MARIA LOURDES P. A. SERENO

Petition, rollo, Vol. I, p. 25;
2

Associate Justice Memorandum of Understanding dated

482 | PART 1 C O N S T I 1 FULLTEXT

14 September 2002, rollo, Vol. I, pp. 21
Motion for Reconsideration, rollo, Vol.
400-406. I, pp. 971-1001.

3
Petition, rollo, Vol. I, pp. 25-26; CA Resolution, rollo, Vol. I, pp. 100-
22

Memorandum of Understanding dated 102.

30 August 2003, rollo, Vol. I, pp. 308-
310, 407-409. 23
Petition, rollo, Vol. I, pp. 27-28.

4
Id. G.R. No. 101949, 1 December 1994,
24

238 SCRA 524, 535.

5
Memorandum of Understanding dated
30 August 2003, rollo, Vol. I, pp. 308- G.R. No. 108813, 15 December 1994,
25

310, 407-409. 239 SCRA 224.

6
Petition, rollo, Vol. I, p. 26; Letter dated 26
Id. at 231-232.
1 October 2003, rollo, Vol. I, pp. 311-
312. 27
221 Phil. 179 (1985).
7
Contract Agreement, rollo, Vol. I, pp. 28
Id. at 184.
126-130, 412-414.
Contract Agreement, rollo, Vol. I, pp.
29
8
Memorandum of Agreement dated
127, 413.
December 2003, rollo, Vol. I, pp. 198-
201.
30
Supra note 2.
9
Loan Agreement, rollo, Vol. I, pp. 242-
282.
31
Supra note 6.

10
Id.
32
Supra note 9.

11
Complaint, rollo, Vol. I, pp. 102-125.
33
Supra note 2, at 400-402.

12
Id.
34
Supra note 6.

13
Order dated 17 March 2006, rollo, Vol.
35
Supra note 8.
I, pp. 290-291.
36
Supra note 9, at 260-261.
Urgent Motion for Reconsideration,
14

rollo, Vol. I, pp. 292-307 37

Id. at 268-269.

Motion to Dismiss, rollo, Vol. I, pp. 324-

15 38
Petition, rollo, Vol. I, p. 47.
369.
39
222 Phil 381, 384 (1985).
Omnibus Order dated 15 May 2007,
16

rollo, Vol. I, pp. 648-658. G.R. No. 152318, 16 April 2009, 585
40

SCRA 150.
17
Motion for Reconsideration, rollo, Vol.
I, pp. 663-695. 41
Id. at 165-173.

18
Order dated 10 March 2008, rollo, Vol. 42
Supra note 24.
I, p. 737.
43
Id. at 531-533.
Petition for Certiorari, rollo, Vol. I, pp.
19

738-792. 44
330 Phil 573 (1996).
20
CA Decision, rollo, Vol. I, pp. 81-99. 45
Id. at 587-588.

483 | PART 1 C O N S T I 1 FULLTEXT

46
Supra note 40, at 174-175.

47
Petition, rollo, Vol. I, p. 30.

Conditions of Contract, rollo, Vol. I, pp.

48

202-241, 415-455.

Supra note 7. Clause 1.1 of the

49

Contract Agreement provides:

The following documents shall

constitute the Contract between
the Employer and the
Contractor, and each shall be
read and construed as an
integral part of the Contract:

(1) Contract Agreement

(2) Amendments, if any to the

Contract documents agreed by
the Parties

(3) Conditions of Contract

(4) Technical Documents

(5) Preliminary Engineering

Design including Bill of
Quantities

(6) Technical Specification

G.R. No. 159618, 1 February 2011,

50

641 SCRA 244, 258-259.

51
Supra note 7.

52
Id.

53
Supra note 6.

54
Supra note 48.

484 | PART 1 C O N S T I 1 FULLTEXT

 SECOND DIVISION
G.R. No. 155504 June 26, 2009
PROFESSIONAL VIDEO, INC., Petitioner,
vs.
TECHNICAL EDUCATION AND SKILLS
DEVELOPMENT AUTHORITY, Respondent.
DECISION
BRION, J.:
We resolve the petition filed by Professional
Video, Inc. (PROVI)1 to annul and set aside the
Decision2 of the Court of Appeals (CA) in CA-
G.R. SP No. 67599, and its subsequent Order
denying PROVI’s motion for
reconsideration.3The assailed CA decision
nullified:
a. the Order4 dated July 16, 2001 of the Regional
Trial Court (RTC), Pasig City, in Civil Case No.
68527, directing the attachment/garnishment of
the properties of respondent Technical
Education and Skills Development Authority
(TESDA) amounting to Thirty Five Million Pesos
(₱35,000,000.00); and
b. the RTC’s August 24, 2001 Order5 denying
respondent TESDA’s motion to discharge/quash
writ of attachment.
THE FACTUAL BACKGROUND
PROVI is an entity engaged in the sale of high
technology equipment, information technology
products and broadcast devices, including the
supply of plastic card printing and security
facilities.
TESDA is an instrumentality of the government
established under Republic Act (R.A.) No. 7796
(the TESDA Act of 1994) and attached to the
Department of Labor and Employment (DOLE)
to "develop and establish a national system of
skills standardization, testing, and certification in
the country."6 To fulfill this mandate, it sought to
issue security-printed certification and/or
identification polyvinyl (PVC) cards to trainees
who have passed the certification process.
TESDA’s Pre-Qualification Bids Award
Committee (PBAC) conducted two (2) public
biddings on June 25, 1999 and July 22, 1999 for
the printing and encoding of PVC cards. A failure
of bidding resulted in both instances since only
two (2) bidders – PROVI and Sirex Phils. Corp. –
submitted proposals.
Due to the failed bidding, the PBAC
recommended that TESDA enter into a
negotiated contract with PROVI. On December
29, 1999, TESDA and PROVI signed and
executed their "Contract Agreement Project:
PVC ID Card Issuance" (the Contract
Agreement) for the provision of goods and
services in the printing and encoding of PVC
cards.7 Under this Contract Agreement, PROVI
was to provide TESDA with the system and
equipment compliant with the specifications
defined in the Technical Proposal. In return,
TESDA would pay PROVI the amount of Thirty-
Nine Million Four Hundred and Seventy-Five
Thousand Pesos (₱39,475,000) within fifteen
(15) days after TESDA’s acceptance of the
contracted goods and services.
On August 24, 2000, TESDA and PROVI
executed an "Addendum to the Contract
Agreement Project: PVC ID Card Issuance"
(Addendum),8 whose terms bound PROVI to
deliver one hundred percent (100%) of the
enumerated supplies to TESDA consisting of
five hundred thousand (500,000) pieces of
security foil; five (5) pieces of security die with
TESDA seal; five hundred thousand (500,000)
pieces of pre-printed and customized
identification cards; one hundred thousand
(100,000) pieces of scannable answer sheets;
and five hundred thousand (500,000)
customized TESDA holographic laminate. In
addition, PROVI would install and maintain the
following equipment: one (1) unit of Micropoise,
two (2) units of card printer, three (3) units of
flatbed scanner, one (1) unit of OMR scanner,
one (1) unit of Server, and seven (7) units of
personal computer.
TESDA in turn undertook to pay PROVI thirty
percent (30%) of the total cost of the supplies
within thirty (30) days after receipt and
acceptance of the contracted supplies, with the
balance payable within thirty (30) days after the
initial payment.
According to PROVI, it delivered the following
items to TESDA on the dates indicated:
Date Particulars Amount
26 April 48,500 pre- ₱
2000 printed cards 2,764,500.00
07
330,000 pre-
June 18,810,000.00
printed cards
2000
07 121,500 pre-
6,925,500.00
August printed cards
485 | PART 1 C O N S T I 1 FULLTEXT
 2000
100,000
26 April scannable
600,000.00
2000 answer
sheets
06 5 Micro-Poise
June customized 375,000.00
2000 die
13 35 boxes @ 10,000,000.00
June 15,000
2000 imp/box
Custom
hologram Foil
₱ ruling that the RTC gravely abused its discretion
Total
39,475,000.00
PROVI further alleged that out of TESDA’s
liability of ₱39,475,000.00, TESDA paid PROVI
only ₱3,739,500.00, leaving an outstanding
balance of ₱35,735,500.00, as evidenced by
PROVI’s Statement of Account.9 Despite the two
demand letters dated March 8 and April 27,
2001 that PROVI sent TESDA,10 the outstanding
balance remained unpaid.
On July 11, 2001, PROVI filed with the RTC a
complaint for sum of money with damages
against TESDA. PROVI additionally prayed for
the issuance of a writ of preliminary
attachment/garnishment against TESDA. The
case was docketed as Civil Case No. 68527. In
an Order dated July 16, 2001, the RTC granted
PROVI’s prayer and issued a writ of preliminary
attachment against the properties of TESDA not
exempt from execution in the amount of
₱35,000,000.00.11
TESDA responded on July 24, 2001 by filing a
Motion to Discharge/Quash the Writ of
Attachment, arguing mainly that public funds
cannot be the subject of garnishment.12 The RTC
denied TESDA’s motion, and subsequently
ordered the manager of the Land Bank of the
Philippines to produce TESDA’s bank statement
for the garnishment of the covered amount.13
Faced with these rulings, TESDA filed a Petition
for Certiorari with the CA to question the RTC
orders, imputing grave abuse of discretion
amounting to lack or excess of jurisdiction on the
trial court for issuing a writ of preliminary
attachment against TESDA’s public funds.14
The CA set aside the RTC’s orders after finding
that: (a) TESDA’s funds are public in nature and,
therefore, exempt from garnishment; and (b)
TESDA’s purchase of the PVC cards was a
necessary incident of its governmental function;
consequently, it ruled that there was no legal
basis for the issuance of a writ of preliminary
attachment/garnishment.15 The CA subsequently
denied PROVI’s motion for
reconsideration;16 hence, the present petition.
THE PETITION
The petition submits to this Court the single
issue of whether or not the writ of attachment
against TESDA and its funds, to cover PROVI’s
claim against TESDA, is valid. The issue
involves a pure question of law and requires us
to determine whether the CA was correct in
in issuing a writ of attachment against TESDA.
PROVI argues that the CA should have
dismissed TESDA’s petition for certiorari as the
RTC did not commit any grave abuse of
discretion when it issued the Orders dated July
16, 2001 and August 24, 2001. According to
PROVI, the RTC correctly found that when
TESDA entered into a purely commercial
contract with PROVI, TESDA went to the level of
an ordinary private citizen and could no longer
use the defense of state immunity from suit.
PROVI further contends that it has alleged
sufficient ultimate facts in the affidavit it
submitted to support its application for a writ of
preliminary attachment. Lastly, PROVI maintains
that sufficient basis existed for the RTC’s grant
of the writ of preliminary attachment, since
TESDA fraudulently misapplied or embezzled
the money earmarked for the payment of the
contracted supplies and services, as evidenced
by the Certification as to Availability of Funds.
TESDA claims that it entered the Contract
Agreement and Addendum in the performance
of its governmental function to develop and
establish a national system of skills
standardization, testing, and certification; in the
performance of this governmental function,
TESDA is immune from suit. Even assuming that
it had impliedly consented to be sued by
entering into a contract with PROVI, TESDA
posits that the RTC still did not have the power
to garnish or attach its funds since these are
public funds. Lastly, TESDA points out that
PROVI failed to comply with the elements for the
valid issuance of a writ of preliminary
attachment, as set forth in Section 1, Rule 57 of
the 1997 Rules of Civil Procedure.
THE COURT’S RULING
486 | PART 1 C O N S T I 1 FULLTEXT
We find, as the CA did, that the RTC’s
questioned order involved a gross misreading of
the law and jurisprudence amounting to action in
excess of its jurisdiction. Hence, we resolve to
DENY PROVI’s petition for lack of merit.
TESDA is an instrumentality of the government
undertaking governmental functions.
R.A. No. 7796 created the Technical Education
and Skills Development Authority or TESDA
under the declared "policy of the State to provide
relevant, accessible, high quality and efficient
technical education and skills development in
support of the development of high quality
Filipino middle-level manpower responsive to
and in accordance with Philippine development
goals and priorities."17 TESDA replaced and
absorbed the National Manpower and Youth
Council, the Bureau of Technical and Vocational
Education and the personnel and functions
pertaining to technical-vocational education in
the regional offices of the Department of
Education, Culture and Sports and the
apprenticeship program of the Bureau of Local
Employment of the DOLE.18 Thus, TESDA is an
unincorporated instrumentality of the
government operating under its own charter.
Among others, TESDA is empowered to:
approve trade skills standards and trade tests as
established and conducted by private industries;
establish and administer a system of
accreditation of both public and private
institutions; establish, develop and support the
institutions' trainors' training and/or programs;
exact reasonable fees and charges for such
tests and trainings conducted, and retain such
earnings for its own use, subject to guidelines
promulgated by the Authority; and perform such
other duties and functions necessary to carry out
the provisions of the Act, consistent with the
purposes of the creation of TESDA.19
Within TESDA’s structure, as provided by R.A.
No. 7769, is a Skills Standards and Certification
Office expressly tasked, among others, to
develop and establish a national system of skills
standardization, testing and certification in the
country; and to conduct research and
development on various occupational areas in
order to recommend policies, rules and
regulations for effective and efficient skills
standardization, testing and certification system
in the country.20 The law likewise mandates that
"[T]here shall be national occupational skills
standards to be established by TESDA-
accredited industry committees. The TESDA
shall develop and implement a certification and
accreditation program in which private groups
and trade associations are accredited to conduct
approved trade tests, and the local government
units to promote such trade testing activities in
their respective areas in accordance with the
guidelines to be set by the TESDA. The
Secretary of Labor and Employment shall
determine the occupational trades for mandatory
certification. All certificates relating to the
national trade skills testing and certification
system shall be issued by the TESDA through its
Secretariat."21
All these measures are undertaken pursuant to
the constitutional command that "[T]he State
affirms labor as a primary social economic
force," and shall "protect the rights of workers
and promote their welfare";22 that "[T]he State
shall protect and promote the right of all citizens
to quality education at all levels, and shall take
appropriate steps to make such education
accessible to all";23 in order "to afford protection
to labor" and "promote full employment and
equality of employment opportunities for all."24
Under these terms, both constitutional and
statutory, we do not believe that the role and
status of TESDA can seriously be contested: it is
an unincorporated instrumentality of the
government, directly attached to the DOLE
through the participation of the Secretary of
Labor as its Chairman, for the performance of
governmental functions – i.e., the handling of
formal and non-formal education and training,
and skills development. As an unincorporated
instrumentality operating under a specific
charter, it is equipped with both express and
implied powers,25 and all State immunities fully
apply to it.26
TESDA, as an agency of the State, cannot be
sued without its consent.
The rule that a state may not be sued without its
consent is embodied in Section 3, Article XVI of
the 1987 Constitution and has been an
established principle that antedates this
Constitution.27 It is as well a universally
recognized principle of international law that
exempts a state and its organs from the
jurisdiction of another state.28The principle is
based on the very essence of sovereignty, and
on the practical ground that there can be no
legal right as against the authority that makes
the law on which the right depends.29 It also rests
on reasons of public policy — that public service
would be hindered, and the public endangered, if
the sovereign authority could be subjected to law
suits at the instance of every citizen and,
consequently, controlled in the uses and
dispositions of the means required for the proper
administration of the government.30
487 | PART 1 C O N S T I 1 FULLTEXT
The proscribed suit that the state immunity
principle covers takes on various forms, namely:
a suit against the Republic by name; a suit
against an unincorporated government agency;
a suit against a government agency covered by
a charter with respect to the agency’s
performance of governmental functions; and a
suit that on its face is against a government
officer, but where the ultimate liability will fall on
the government. In the present case, the writ of
attachment was issued against a government
agency covered by its own charter. As discussed
above, TESDA performs governmental
functions, and the issuance of certifications is a
task within its function of developing and
establishing a system of skills standardization,
testing, and certification in the country. From the
perspective of this function, the core reason for
the existence of state immunity applies – i.e., the
public policy reason that the performance of
governmental function cannot be hindered or
delayed by suits, nor can these suits control the
use and disposition of the means for the
performance of governmental functions. In
Providence Washington Insurance Co. v.
Republic of the Philippines,31 we said:
[A] continued adherence to the doctrine of non-
suability is not to be deplored for as against the
inconvenience that may be caused private
parties, the loss of governmental efficiency and
the obstacle to the performance of its
multifarious functions are far greater if such a
fundamental principle were abandoned and the
availability of judicial remedy were not thus
restricted. With the well known propensity on the
part of our people to go to court, at the least
provocation, the loss of time and energy
required to defend against law suits, in the
absence of such a basic principle that
constitutes such an effective obstacle, could
very well be imagined.
PROVI argues that TESDA can be sued
because it has effectively waived its immunity
when it entered into a contract with PROVI for a
commercial purpose. According to PROVI, since
the purpose of its contract with TESDA is to
provide identification PVC cards with security
seal which TESDA will thereafter sell to TESDA
trainees, TESDA thereby engages in commercial
transactions not incidental to its governmental
functions.
TESDA’s response to this position is to point out
that it is not engaged in business, and there is
nothing in the records to show that its purchase
of the PVC cards from PROVI is for a business
purpose. While TESDA admits that it will charge
the trainees with a fee for the PVC cards, it
claims that this fee is only to recover their costs
and is not intended for profit.
We agree with TESDA. As the appellate court
found, the PVC cards purchased by TESDA
from PROVI are meant to properly identify the
trainees who passed TESDA’s National Skills
Certification Program – the program that
immediately serves TESDA’s mandated function
of developing and establishing a national system
of skills standardization, testing, and certification
in the country.32 Aside from the express mention
of this function in R.A. No. 7796, the details of
this function are provided under DOLE
Administrative Order No. 157, S. 1992, as
supplemented by Department Order Nos. 3 thru
3-F, S. 1994 and Department Order No. 13, S.
1994.33
Admittedly, the certification and classification of
trainees may be undertaken in ways other than
the issuance of identification cards, as the RTC
stated in its assailed Order.34 How the mandated
certification is to be done, however, lies within
the discretion of TESDA as an incident of its
mandated function, and is a properly delegated
authority that this Court cannot inquire into,
unless its exercise is attended by grave abuse of
discretion.
That TESDA sells the PVC cards to its trainees
for a fee does not characterize the transaction
as industrial or business; the sale, expressly
authorized by the TESDA Act,35 cannot be
considered separately from TESDA’s general
governmental functions, as they are undertaken
in the discharge of these functions. Along this
line of reasoning, we held in Mobil Philippines v.
Customs Arrastre Services:36
Now, the fact that a non-corporate government
entity performs a function proprietary in nature
does not necessarily result in its being suable. If
said non-governmental function is undertaken as
an incident to its governmental function, there is
no waiver thereby of the sovereign immunity
from suit extended to such government entity.
TESDA’s funds are public in character, hence
exempt from attachment or garnishment.
Even assuming that TESDA entered into a
proprietary contract with PROVI and thereby
gave its implied consent to be sued, TESDA’s
funds are still public in nature and, thus, cannot
be the valid subject of a writ of garnishment or
attachment. Under Section 33 of the TESDA Act,
the TESDA budget for the implementation of the
Act shall be included in the annual General
Appropriation Act; hence, TESDA funds, being
488 | PART 1 C O N S T I 1 FULLTEXT
sourced from the Treasury, are moneys
belonging to the government, or any of its
departments, in the hands of public
officials.37 We specifically spoke of the limits in
dealing with this fund in Republic v.
Villasor38 when we said:
This fundamental postulate underlying the 1935
Constitution is now made explicit in the revised
charter. It is therein expressly provided, ‘The
State may not be sued without its consent.’ A
corollary, both dictated by logic and sound
sense, from such a basic concept, is that public
funds cannot be the object of garnishment
proceedings even if the consent to be sued had
been previously granted and the state liability
adjudged. Thus in the recent case of
Commissioner of Public Highways vs. San
Diego, such a well-settled doctrine was restated
in the opinion of Justice Teehankee:
The universal rule that where the State gives its
consent to be sued by private parties either by
general or special law, it may limit claimant's
action 'only up to the completion of proceedings
anterior to the stage of execution' and that the
power of the Courts ends when the judgment is
rendered, since government funds and
properties may not be seized under writs of
execution or garnishment to satisfy such
judgments, is based on obvious considerations
of public policy. Disbursements of public funds
must be covered by the corresponding
appropriation as required by law. The functions
and public services rendered by the State
cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their
legitimate and specific objects, as appropriated
by law. [Emphasis supplied.]
We reiterated this doctrine in Traders Royal
Bank v. Intermediate Appellate Court,39 where
we said:
The NMPC’s implied consent to be sued
notwithstanding, the trial court did not have the
power to garnish NMPC deposits to answer for
any eventual judgment against it. Being public
funds, the deposits are not within the reach of
any garnishment or attachment
proceedings. [Emphasis supplied.]
As pointed out by TESDA in its
Memorandum,40 the garnished funds constitute
TESDA’s lifeblood – in government parlance, its
MOOE41 – whose withholding via a writ of
attachment, even on a temporary basis, would
paralyze TESDA’s functions and services. As
well, these funds also include TESDA’s Personal
Services funds from which salaries of TESDA
personnel are sourced. Again and for obvious
reasons, the release of these funds cannot be
delayed.
PROVI has not shown that it is entitled to the
writ of attachment.
Even without the benefit of any immunity from
suit, the attachment of TESDA funds should not
have been granted, as PROVI failed to prove
that TESDA "fraudulently misapplied or
converted funds allocated under the Certificate
as to Availability of Funds." Section 1, Rule 57 of
the Rules of Court sets forth the grounds for
issuance of a writ of preliminary attachment, as
follows:
SECTION 1. Grounds upon which attachment
may issue. – A plaintiff or any proper party may,
at the commencement of the action or at any
time thereafter, have the property of the adverse
party attached as security for the satisfaction of
any judgment that may be recovered in the
following cases:
(a) In an action for recovery of a
specified amount of money or damages,
other than moral and exemplary, on a
cause of action arising from law,
contract, quasi-contract, delict or quasi-
delict against a party who is about to
depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his use by a public officer,
or an officer of a corporation, or an
attorney, factor, broker, agent or clerk, in
the course of his employment as such,
or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the
possession of property unjustly or
fraudulently taken, detained or
converted, when the property or any part
thereof, has been concealed, removed
or disposed of to prevent its being found
or taken by the applicant or an
authorized person;
(d) In an action against a party who has
been guilty of fraud in contracting the
debt or incurring the obligation upon
which the action is brought, or in
concealing or disposing of the property
for the taking, detention or conversion of
which the action is brought;
489 | PART 1 C O N S T I 1 FULLTEXT
 (e) In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud
his creditors;
(f) In an action against a party who does
not reside and is not found in the
Philippines, or on whom summons may
be served by publication. [Emphasis
supplied.]
Jurisprudence teaches us that the rule on the
issuance of a writ of attachment must be
construed strictly in favor of the defendant.
Attachment, a harsh remedy, must be issued
only on concrete and specific grounds and not
on general averments merely quoting the words
of the pertinent rules.42 Thus, the applicant’s
affidavit must contain statements clearly
showing that the ground relied upon for the
attachment exists.
Section 1(b), Rule 57 of the Rules of Court, that
PROVI relied upon, applies only where money or
property has been embezzled or converted by a
public officer, an officer of a corporation, or
some other person who took advantage of his
fiduciary position or who willfully violated his
duty.
PROVI, in this case, never entrusted any money
or property to TESDA. While the Contract
Agreement is supported by a Certificate as to
Availability of Funds (Certificate) issued by the
Chief of TESDA’s Accounting Division, this
Certificate does not automatically confer
ownership over the funds to PROVI. Absent any
actual disbursement, these funds form part of
TESDA’s public funds, and TESDA’s failure to
pay PROVI the amount stated in the Certificate
cannot be construed as an act of fraudulent
misapplication or embezzlement. In this regard,
Section 86 of Presidential Decree No. 1445 (The
Accounting Code) provides:
Section 86. Certificate showing appropriation to
meet contract. – Except in a case of a contract
for personal service, for supplies for current
consumption or to be carried in stock not
exceeding the estimated consumption for three
months, or banking transactions of government-
owned or controlled banks, no contract involving
the expenditure of public funds by any
government agency shall be entered into or
authorized unless the proper accounting official
or the agency concerned shall have certified to
the officer entering into the obligation that funds
have been duly appropriated for the purpose and
that the amount necessary to cover the
proposed contract for the current fiscal year is
available for expenditure on account thereof,
subject to verification by the auditor concerned.
The certification signed by the proper accounting
official and the auditor who verified it, shall be
attached to and become an integral part of the
proposed contract, and the sum so certified shall
not thereafter be available for expenditure for
any other purpose until the obligation of the
government agency concerned under the
contract is fully extinguished. [Emphasis
supplied.]
By law, therefore, the amount stated in the
Certification should be intact and remains
devoted to its purpose since its original
appropriation. PROVI can rebut the presumption
that necessarily arises from the cited provision
only by evidence to the contrary. No such
evidence has been adduced.
Section 1 (d), Rule 57 of the Rules of Court
applies where a party is guilty of fraud in
contracting a debt or incurring an obligation, or
in concealing or disposing of the property for the
taking, detention or conversion of which the
action is brought. In Wee v. Tankiansee,43 we
held that for a writ of attachment to issue under
this Rule, the applicant must sufficiently show
the factual circumstances of the alleged fraud
because fraudulent intent cannot be inferred
from the debtor’s mere non-payment of the debt
or failure to comply with his obligation. The
affidavit, being the foundation of the writ, must
contain particulars showing how the imputed
fraud was committed for the court to decide
whether or not to issue the writ. To reiterate, a
writ of attachment can only be granted on
concrete and specific grounds and not on
general averments merely quoting the words of
the rules.44
The affidavit filed by PROVI through Elmer
Ramiro, its President and Chief Executive
Officer, only contained a general allegation that
TESDA had fraudulent misapplied or converted
the amount of ₱10,975,000.00 that was allotted
to it. Clearly, we cannot infer any finding of fraud
from PROVI’s vague assertion, and the CA
correctly ruled that the lower court acted with
grave abuse of discretion in granting the writ of
attachment despite want of any valid ground for
its issuance.1avv phi 1
For all these reasons, we support the appellate
court’s conclusion that no valid ground exists to
support the grant of the writ of attachment
against TESDA. The CA’s annulment and setting
aside of the Orders of the RTC were therefore
fully in order.
490 | PART 1 C O N S T I 1 FULLTEXT
WHEREFORE, premises considered, we hereby
DENY the petition filed by petitioner Professional
Video, Inc., and AFFIRM the Court of Appeals’
Decision dated July 23, 2002, and Resolution of
September 27, 2002, in CA-G.R. SP No. 67599.
Costs against the petitioner.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
** Designated additional Member of the
Second Division effective June 3, 2009
per Special Order No. 658 dated June 3,
2009.
*** Designated additional Member of the
Second Division effective May 11, 2009
per Special Order No. 635 dated May 7,
2009.
1
Petition for review on certiorari under
Rule 45 of the Rules of Court; rollo, pp.
8-21.

LEONARDO A. QUISUMBING
2
Dated July 23, 2002, penned by
Associate Justice Associate Justice Eliezer R. De Los
Chairperson Santos, with Acting Presiding Justice
Cancio C. Garcia (retired member of this
Court) and Associate Justice Marina L.
CONSUELO Buzon (retired), concurring; id., pp. 22-
MINITA V. CHICO-
YNARES- 31.
NAZARIO**
SANTIAGO*
Associate Justice
Associate Justice 3
Dated September 27, 2002; id., pp. 32-
33.
TERESITA J. LEONARDO-DE CASTRO***
Associate Justice 4
Penned by Judge Mariano M. Singzon,
Jr.; id., pp. 86-87.
ATTESTATION
5
Id., pp. 88-89.
I attest that the conclusions in the above
Decision had been reached in consultation 6
R.A. No. 7796, Section 14(b)(1).
before the case was assigned to the writer of the
opinion of the Court’s Division. 7
Rollo, pp. 45-47.
LEONARDO A. QUISUMBING
Associate Justice
8
Id., pp. 51-54.
Chairperson
9
Id., p. 55.
CERTIFICATION
10
Id., pp. 56-57.
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
11
Id., pp. 86-87.
Attestation, it is hereby certified that the
conclusions in the above Decision were reached 12
Id., pp. 95-108.
in consultation before the case was assigned to
the writer of the opinion of the Court’s Division. 13
Order dated September 10, 2001; id.,
p. 120.
REYNATO S. PUNO
Chief Justice 14
Filed on November 15, 2001; id., pp.
60-85.

15
Dated July 23, 2002; id., pp. 23-31.

Footnotes In a Resolution dated September 27,

16

2002; id., p. 33.

* Designated additional Member of the
Second Division per Special Order No. 17
Supra note 6, Section 2.
645 dated May 15, 2009.

491 | PART 1 C O N S T I 1 FULLTEXT

18
Id., Section 5. G.R. No. L-23139, December 17,
36

1966, 18 SCRA 1120.

19
Id., Section 8.
Black’s Law Dictionary, 6th Ed., p.
37

20
Id., Section 14(b). 1229.

21
Id., Section 22. G.R. No. L-30671, November 28,
38

1973, 54 SCRA 84.

22
CONSTITUTION, Article II, Section
18. G.R. No. 68514, December 17, 1990,
39

192 SCRA 305.

23
Id., Article XIV, Section 1.
40
Rollo, pp. 188-202.
24
Id., Article XIII, Section 3.
Maintenance and Other Operating
41

25
See Laguna Lake Development Expenses.
Authority v. Court of Appeals, G.R. No.
110120, March 16, 1994, 231 SCRA Dy v. Enage, G.R. No. L-3535, March
42

292; Republic v. Court of Appeals, G.R. 17, 1976, 670 SCRA 96.
No. 90482, August 5, 1991, 200 SCRA
226. G.R. No. 171124, February 13, 2008,
43

545 SCRA 263.

26
See Farolan, Jr. v. Court of Tax
Appeals, G.R. No. 42204, January 21, 44
D.P. Lub Oil Marketing Center, Inc. v.
1993, 217 SCRA 298; Pacific Products, Nicolas, G.R. No. 76113, November 16,
Inc. v. Ong, G.R. No. 33777, January 1990, 191 SCRA 423.
30, 1990, 181 SCRA 536.

27
Metran v. Paredes, 79 Phil. 819
(1948).

JUSMAG Philippines v. NLRC, G.R.

28

No. 108813, December 15, 1994, 239

SCRA 224.

29
Republic v. Sandoval, G.R. No. 84645,
March 19, 1993, 220 SCRA 124,
citing Kawanakoa v. Polyblank, 205 U.S.
349-353, 51 L. Ed. 834 (1907).

30
Ibid., citing The Siren v. United States,
7 Wall. 152, 19 L. Ed. 129 (1869).

G.R. No. L-26386, September 30,

31

1969, 29 SCRA 598.

32
R.A. No. 7796, Section 14(b)(1).

33
Whereas Clause of Contract
Agreement Project: PVC ID Card
Issuance; rollo, pp. 45-47.

34
Supra note 4.

See: Section 8 (5) to (10), R.A. No.

35

7796.

492 | PART 1 C O N S T I 1 FULLTEXT

 FIRST DIVISION
G.R. No. 120385 October 17, 1996
REPUBLIC OF THE PHILIPPINES,
represented by ASSET PRIVATIZATION
TRUST, petitioner,
vs.
NATIONAL LABOR RELATIONS
COMMISSION, HON. EDUARDO J. CARPIO,
and PANTRANCO ASSOCIATION OF
CONCERNED EMPLOYEES
UNION, respondents.
VITUG, J.:p
Once a judgment becomes final, it is a
matter of right for the prevailing party to
be entitled to a writ of execution, so
1
described as the fruit and end of the
suit. The decisions of the Labor Arbiters
2
and the National Labor Relations
Commission ("NLRC") having gained
finality, writs of execution and notices of
garnishment have been issued in (a)
NLRC NCR Case No. 00-08-05380-
93, "PANTRANCO EMPLOYEES
3
ASSOCIATION PTGWO vs.
PANTRANCO NORTH EXPRESS INC.
AND ASSET PRIVATIZATION TRUST;"
(b) NLRC-NCR Case No. 00-05-03587-
93, "PANTRANCO ASSOCIATION OF
4
CONCERNED EMPLOYEES UNION vs.
PANTRANCO NORTH EXPRESS, INC.,
ASSET PRIVATIZATION TRUST AND
DEPARTMENT OF
TRANSPORTATION AND
COMMUNICATION;" and, (c) NLRC
CASE NO. SUB-RAB-01-12-7-0225-
93, "DR. ANTONIO P. CABUGAO vs.
5
PANTRANCO NORTH EXPRESS, INC.,
ASSET PRIVATIZATION TRUST."
The writs of execution and notices of
garnishment are now sought to be set
aside by the Republic, represented by
the Asset Privatization Trust ("APT"), in
the instant special civil action of
prohibition with prayer for the issuance
of preliminary injunction or temporary
restraining order.
Prefatorily, it would be helpful to mention
how APT became involved in these
various cases of monetary claims filed
by the employees of the Pantranco
North Express, Inc. ("PNEI").
In December of 1978, the full ownership
of PNEI was transferred to its creditor,
the National Investment Development
Corporation ("NIDC"), a subsidiary of the
Philippine National Bank
("PNB"), following the latter's
6
foreclosure of PNEI assets. PNEI was
one among several companies placed
under sequestration by the Presidential
Commission on Good Government
("PCGG") shortly after the historic 1986
events in EDSA. Some time in January,
1988, the sequestration order was lifted
to give way to the sale of PNEI by the
APT which, in the meanwhile, had taken
over the management of the
company. The continuing deterioration
7
of its financial condition prompted PNEI
to lodge, on 07 May 1992, a Petition for
Suspension of Payments with the
Securities and Exchange Commission
("SEC"), a move calculated to prevent
further dissipation of PNEI's assets and
to make PNEI a viable source of income
for the government. The management
8
committee, which was created to handle
the business operations of PNEI,
presented a report to the SEC that
recommended, in a move to best serve
the interest of all parties concerned
(creditors, employees of PNEI and the
government), the sale of the company
through privatization in accordance with
the rules of the APT. As a cost saving
measure, the management committee
also recommended to the SEC the
retrenchment of some 500 employees of
PNEI. The retrenchment was carried out
during the months of November and
December of 1992 and January of 1993.
The filing of various labor complaints
against PNEI was the immediate result.
(A) NLRC NCR Case No. 00-08-05380-
93 was started by PEA-PTGWO on 27
August 1993 in the Arbitration Branch of
the NLRC-NCR against PNEI and APT
for unfair labor practice, for non-
payment of 13th month pay, and various
other claims. Summonses were served
and received by the respective Legal
Departments of PNEI and APT. When
the case was called for hearing, only
PNEI made an appearance through the
Office of the Government Corporate
Counsel ("OGCC"). In the subsequent
hearings, while APT did not formally
enter its appearance, it, however,
submitted a position paper with a motion
to dismiss the case. On 14 February
9
493 | PART 1 C O N S T I 1 FULLTEXT
1994, Labor Arbiter Eduardo Carpio
rendered a decision holding PNEI and
APT jointly and solidarily liable, viz:
WHEREFORE, premises
considered, judgment is hereby
rendered ordering respondents
to jointly and severally pay all
the covered employees the
following:
1. 13th month pay and
P1,000.00 cash gift for the year
1992;
2. medicine allowance from
1991 to September 1993 when
the company ceased its
operations;
3. uniform allowance pursuant
to Art. XIII of the CBA;
4. separation pay equivalent to
one (1) month for every year of
service, a fraction of six (6)
months to be considered as one
(1) whole year; and
5. 10% of the total award as
attorney's fees. 10
No appeal was interposed by either the
PNEI or the APT from the Carpio
decision. PEA-PTGWO in due time filed
an urgent motion for the issuance of a
writ of execution. Acting on the motion,
Labor Arbiter Carpio directed the
Research and Information Unit of the
NLRC to submit an official computation
of PEA-PTGWO's monetary
entitlements. PEA-PTGWO, PNEI and
APT were all served with copies of the
computation directing them to submit
their respective comments thereon. Only
PEA-PTGWO submitted its
manifestation stating that it was
agreeable to the computation.
A writ of execution, dated 26 May 1994,
was eventually issued by Labor Arbiter
Carpio. The writ was sought to be
implemented by Sheriff Juanito Atienza
but only a partial satisfaction of
judgment could be realized (through the
sale of levied properties of PNEI in the
sum of P22,300.00). PEA-PTGWO filed
11
an urgent motion for the issuance of
an alias writ of execution which was
favorably acted upon. In carrying out
the aliaswrit, Sheriff Atienza served a
notice of garnishment, dated 16
November 1994, on the Land Bank of
the Philippines "upon all . . . credits,
interests, bank deposits . . . belonging to
respondent Pantranco North Express,
Inc. or the respondent Asset
Privatization Trust" sufficient to cover
12
the remaining balance of the judgment
award in the sum of P68,947,756.10.
The Land Bank, in turn, responded in
one of its letters to Sheriff Atienza that
since the funds of APT, a government
owned and controlled agency, were
considered public in nature, they could
not be the subject of garnishment. 13
(B) NLRC-NCR-00-05-03587-93, the
second labor case, involved a claim for
separation pay, 13th month pay and
other benefits lodged by PACEU against
PNEI, APT and DOTC. The proceedings
that transpired in NLRC-NCR-00-05-
03587-93 were summarized by Labor
Arbiter Paul Aquino in his 21 July 1993
decision; viz:
It appears on record that this
case was initially set for
mandatory conference on June
9, 1993. On June 9, 1993,
record of the case shows that
only the complainant appeared.
Respondents appeared on June
18, 1993 but efforts to settle the
case failed.
Complainants on June 29, 1993,
filed their position paper
together with their individual
computation of claims. On June
30, 1993, parties appeared
wherein respondents committed
to file its position paper on July
8, 1993 with understanding that
with or without the said position
paper the case should be
deemed submitted for decision.
On July 8, 1993, complainants
appeared. Respondents on its
part did not appear neither did it
file the required position paper,
it did not even explain the
reason of its non-appearance.
Citing the agreement on June
30, 1993 hearing this Office
issued an Order on July 13,
1993, the same states:
494 | PART 1 C O N S T I 1 FULLTEXT
When this case this Order shall
was called for be deemed
hearing on June waiver of rights
30, 1993, to present
respondent evidence
requested that it hence, the
be given until above-entitled
July 8, 1993 case shall be
within which to deemed
submit its submitted for
position paper resolution. No
with the motion for
understanding extension shall
that with or be entertained.
without the said
position paper, SO ORDERED.
the same shall
be deemed
It appeared on record that
submitted for
respondent did not file the
decision. required position paper despite
receipt of the mentioned Order.
This case was
set again for
In consonance therefore with
hearing on July
the Order of July 13, 1993 and
8, 1993 at 2:00 pursuant to par. c, Section 11,
p.m. During the
Rule V New Rules of Procedure
hearing,
of this Office, this case is now
complainants
considered submitted for
together with
decision. 14

counsel
appeared while
respondent On 21 July 1993, Labor Arbiter Aquino
failed to appear rendered a decision, the decretal portion
and likewise of which read:
failed to submit
the required WHEREFORE, premises
position paper. considered judgment is hereby
Thus, rendered ordering respondent
complainants Pantranco North Express, Inc.
move for the to pay individual complainants
submission of the following amount as
the above- computed.
entitled case for
decision. In addition, respondent
company is further directed to
ACCORDINGL pay individual complainants the
Y, respondent uniformed amount of P1,000.00
Pantranco representing unpaid gift check
North Express, and uniform allowance in the
Inc. is hereby amount of P5,868.00 for male
ordered to complainants and the amount of
submit its P5,058.00 for female
position paper complainants for the year 1991,
together with 1992 and 1993, with the
supporting exemption of complainant
documents Marciano Cleofas who is not
within five (5) entitled to uniform allowance. In
days from the case of complainants
receipt of this Rogelio Murillo, Oronico
Order. Failure Ponciano, Pereya Francisco,
to comply with Bernardo Santos and Felizardo
495 | PART 1 C O N S T I 1 FULLTEXT
 Lambino respondent is directed
to pay each of them the amount
of P6,660.00 for the period
1991, 1992 and 1993.
Respondent is likewise directed
to pay the attorney's fees
equivalent to 10% of the total
monetary award of THIRTY
NINE MILLION SEVEN
HUNDRED THIRTY SIX
THOUSAND FOUR HUNDRED
FIFTY NINE PESOS AND
THIRTEEN CENTAVOS
(P39,736,459.13)
SO ORDERED. 15
Since none of the parties appealed, the
aforequoted decision eventually became
final and executory. Upon motion, Labor
Arbiter Aquino issued a writ of execution
commanding the sheriff, as follows:
NOW THEREFORE, you are
hereby commanded to proceed
to the premises of the
respondent Pantranco North
Express, Inc. located at 325
Quezon Blvd. Extension,
Quezon City to collect the
amount of P39,736,459.43 and
attorney's fees in the amount of
P3,973,645.91 plus the
execution fee of P40,000.00 as
per Manual Instruction for
Sheriff in cash and to turn over
the same to this Office for
proper disposition. 16
By virtue of the writ, various pieces of
property of PNEI were levied upon and
sold at public auction. Meanwhile, APT
filed an Urgent Ex-Parte Motion to
Quash Execution. By then, the proceeds
of the sale of some property had
amounted to P1,200,000.00. The
amount was deposited with the NLRC
pending resolution of APT's motion.
PEA-PTGWO filed a Motion for
Intervention before Labor Arbiter Aquino
claiming interest over the same property
of PNEI because of the union's own
monetary claim against the latter.
The case was re-raffled to Labor Arbiter
Ricardo Nora, following the inhibition of
Labor Arbiter Aquino, who issued an
order on 19 November 1993 denying
both APT's Urgent Ex-Parte Motion to
Quash and PEA-PTGWO's Motion for
Intervention. Only PEA-PTGWO
appealed to the NLRC for the reversal of
the order of the Labor Arbiter.
On 29 November 1994, an order 7 was 1
issued by the NLRC affirming the
appealed order of respondent Arbiter.
The subsequent motion for
reconsideration was denied by the
NLRC in its 21 June 1995 order which 18
became final and executory on 14 July
1995, and thereafter recorded in the
Book of Entries of Judgment. 19
(C) The complaint in NLRC CASE
NO. SUB-RAB-01-12-7-0225-93 was
initiated by respondent Antonio
Cabugao before the Sub-Regional
Arbitration Branch of NLRC in Dagupan
City against PNEI and APT similarly
involving claims for separation pay, 13th
month pay and other benefits. Despite
receipt of the summonses, PNEI and
APT failed to file their answers. On 29
August
1994, a decision was promulgated
20
ordering respondent PNEI to pay the
complainant the total amount of
P208,954.60.
The decision became final and
executory; hence, upon motion, a writ of
execution was issued by Labor Arbiter
21
Gambito.
Mention might also be made of the fact
that in addition to the writs issued by the
labor arbiters, PNEI had likewise been
sued and adjudged to pay certain
amounts to different judgment
creditors. Losses incurred by PNEI
22
continued to mount due to cash-flow
problems and the depletion of the aging
fleet of buses which were not replaced.
The demands for payment of maturing
and overdue obligations made matters
worse.
In NLRC Case No. 00-08-05380-93,
Sheriff Atienza attempted to satisfy the
judgment against APT funds.
Foreseeing that other respondent
Sheriffs would take similar steps unless
seasonably enjoined, the Republic,
represented by APT, filed the instant
petition. The Court, on 05 July 1995,
issued the temporary restraining order
prayed for. 23
496 | PART 1 C O N S T I 1 FULLTEXT
The pivotal issue, in the manner the
Court sees it, is whether or not, given
these case settings, APT itself can be
held liable for the obligations of PNEI.
The Solicitor-General initially points out
that APT, being an agency or
instrumentality of the Republic of the
Philippines, is immune from suit. The
Court is not persuaded even as it is
cognizant of the doctrine that "(t)he
State may not be sued without its
consent," for as the Court has so
24
stressed in Department of Agriculture
vs. NLRC, the rule —
25
. . . is not really absolute for it
does not say that the state may
not be sued under any
circumstance. On the contrary,
as correctly phrased, the
doctrine only conveys, "the state
may not be sued without its
consent;" its clear import then is
that the State may at times be
sued. The States' consent may
be given either expressly or
impliedly. Express consent may
be made through a general law
or a special law. In this
jurisdiction, the general law
waiving the immunity of the
state from suit is found in Act
No. 3083, where the Philippine
government "consents and
submits to be sued upon any
money claim involving liability
arising from contract, express or
implied, which could serve as a
basis of civil action between
private parties." Implied
consent, on the other hand, is
conceded when the State itself
commences litigation, thus
opening itself to a counter-claim,
or when it enters into a contract.
(Footnotes omitted)
Proclamation No. 50, creating APT
26
which has been mandated to "take title
to and possession of, conserve,
provisionally manage and dispose of
assets" that have been identified for
privatization or disposition, 7 clearly
2
provides that said instrumentality,
among other things, can "sue and be
sued." This provision indubitably shows
28
that APT can be haled to court.
Nonetheless, we have likewise since
explained that suability does not
29
necessarily mean liability on the part of
the particular instrumentality or agency
of the government; hence —
When the State gives its
consent to be sued, it does not
thereby necessarily consent to
an unrestrained execution
against it. Tersely put, when the
State waives its immunity, all it
does, in effect, is to give the
other party an opportunity to
prove, if it can, that the State
has a liability. In Republic
vs. Villasor this Court, in
nullifying the issuance of
an alias writ of execution
directed against the funds of the
Armed Forces of the Philippines
to satisfy a final and executory
judgment, has explained, thus
—
The universal rule that where
the State gives its consent to be
sued by private parties either by
general law or special law, it
may limit claimant's action "only
up to the completion of
proceedings anterior to the
stage of execution" and that the
power of the Courts ends when
the judgment is rendered, since
government funds and
properties may not be seized
under writs of execution or
garnishment to satisfy such
judgments, is based on obvious
considerations of public policy.
Disbursements of public funds
must be covered by the
correspondent appropriation as
required by law. The functions
and public services rendered by
the State cannot be allowed to
be paralyzed or disrupted by the
diversion of public funds from
their legitimate and specific
objects, as appropriated by
law. (Footnotes omitted)
30
Delving into the other crucial question, it
would be, in our view, a clear and patent
error to construe the decreed joint and
solidary liability of APT (in NLRC NCR
Case No. 00-08-05380-93) as extending
beyond what APT has held in or
acquired from PNEI. A matter that must
not be overlooked is the fact that the
inclusion of APT as a respondent in the
monetary claims against PNEI is merely
497 | PART 1 C O N S T I 1 FULLTEXT
 the consequence of its being a 7 Rollo, p. 106.
conservator of assets, a role that APT
normally plays in, or the relationship that 8 Rollo, pp. 106-107.
ordinarily it maintains with, corporations
identified for and while under 9 Rollo, p. 77.
privatization. The liability of APT under
this particular arrangement, nothing else
having been shown, should be co- 10 Rollo, p. 114.
extensive with the amount of assets
taken over from the privatized firm. 11 Annexes "17," "18," and "19,"
PNEI's assets obviously remain to be PEA-PTGWO's
subject to execution by judgment Comment, Rollo, pp. 125-127.
creditors of PNEI. Accordingly, the levy
and auction sale of the property of PNEI 12 Rollo, p. 37.
to satisfy the monetary judgment
rendered in favor of PNEI employees 13 Annex "22," PEA-PTGWO's
can be sustained since such assets are Comment, Rollo, p. 130.
to be deemed subject to all valid claims
against PNEI. 31

14 Rollo, pp. 163-165.

WHEREFORE, the petition is
15 Rollo, pp. 167-168.
GRANTED. The notice of garnishment
directed against the funds of APT is
NULLIFIED and the temporary 16 Rollo, p. 39.
restraining order issued by this Court is
made PERMANENT. No costs. 17 Annex "A," PACEU's
Comment, Rollo, p. 218; Annex
SO ORDERED. "B," Ricardo Nora's
Comment, Rollo, pp. 169-174.
Padilla, Bellosillo, Kapunan and Hermosisima,
Jr., JJ., concur. 18 Annex "B," PACEU's
Comment, Rollo, pp. 219-220.
Footnotes
19 Annex "C," Ibid., p. 221.
1 Abbott vs. NLRC, 145 SCRA
206; Balintawak Construction 20 Rollo, pp. 46-47.
Supply Corporation vs.
Valenzuela, 124 SCRA 331; 21 "WHEREAS,
Gonzales vs. Sayo, 122 SCRA respondent PNEI did
607; Clemente-De Guzman vs. not appeal the decision,
Reyes, 114 SCRA 596; thus, it has become final
Republic vs. Reyes, 71 SCRA and executory;
450; Carreon vs. Buissan, 70
SCRA 57. "WHEREAS, the
monetary award as
2 Garcia vs. Echiverri, 132 computed by this Office
SCRA 631. has not been paid.

3 Annexes "A," and "B," "NOW THEREFORE, in

Petition, Rollo, pp. 34-37. the name of the
Republic of the
4 Annexes "C," "C-1," and "D," Philippines, you are
Petition, Rollo, pp. 38-45. hereby commanded to
collect from the
respondent PNEI at
5 Annexes "E," and "F,"
Dagupan City or in
Petition, Rollo, pp. 46-49.
Quezon City, the total of
P208,954.60 as
6 Rollo, p. 106. computed by this Office,
and if you fail to collect
498 | PART 1 C O N S T I 1 FULLTEXT
 the said amount, you 24 Article XVI, Section 3 of the
are ordered to garnish Constitution.
the monetary deposits
of the respondent, if 25 227 SCRA 693.
any, from any of the
banks in Dagupan City
26 Entitled, "Proclaiming And
or Quezon City, and/or
Launching A Program For The
seize the goods or Expeditious Disposition And
chattels of the Privatization Of Certain
respondent, except
Government Corporations
those exempted by law,
And/Or The Assets Thereof,
and sell the same in the
And Creating The Committee
manner provided for by
On Privatization And The Asset
law for the satisfaction Privatization Trust"
of the judgment." (Rollo,
p. 47.)
27 Section 9, Article III,
Proclamation No. 50.
22 1. NLRC Case No. 00-05-
02570-90, "Pantranco
Association of Concerned 28 Section 12 (7), Article III,
Employees vs. Pantranco North Proclamation No. 50.
Express, Inc.," for
P23,192,706.85; 29 Supra., note 25.

2. NLRC NCR Case No. 30 At pp. 701-702.

6-2863-83, "Pantranco
Employees Association-
PTGWO vs. PNEI," for
P146,331,303.83;
3. Civil Case No. 93-
66675, "RR Metal
Casting and
Fabrication, Inc. vs.
PNEI," for P473,614.77;
4. Civil Case No. Q-
34044, "Rodolfo Jacela
vs. PNEI," for
P225,980.00;
31 Republic of the Philippines,
represented by Asset
Privatization Trust vs. National
Labor Relations Commission,
244 SCRA 564; see also North
Davao Mining Corporation and
Asset Privatization Trust vs.
National Labor Relations
Commission, et al., G.R. No.
112546, 13 March 1996.

5. Civil Case No. 93-

66642, "Quezon
Bearing and Parts Corp.
vs. PNEI," for
P3,209,474.00;

6. Civil Case No. 92-

59723, "Fordson Parts
Supply, Inc. vs. PNEI,"
for P22,545,159.27; and

7. Civil Case No. Q-93-

16971, "Uy Sun Huat
vs. PNEI," for
P127,590.00

23 Rollo, pp. 58-59.

499 | PART 1 C O N S T I 1 FULLTEXT

 SECOND DIVISION
G.R. No. 182358 February 20, 2013
DEPARTMENT OF HEALTH, THE
SECRETARY OF HEALTH, and MA.
MARGARITA M. GALON, Petitioners,
vs.
PHIL PHARMA WEALTH, INC., Respondent.
DECISION
DEL CASTILLO, J.:
The state may not be sued without its consent.
Likewise, public officials may not be sued for
acts done in the perfom1ance of their official
functions or within the scope of their authority.
This Petition for Review on Certiorari1 assails the
October 25, 2007 Decision2 of the Court of
Appeals (CA) in CA-G.R. CV No. 85670, and its
March 31, 2008 Reso1ution3 denying petitioners'
Motion for Reconsideration.4
Factual Antecedents
On December 22, 1998, Administrative Order
(AO) No. 27 series of 19985 was issued by then
Department of Health (DOH) Secretary Alfredo
G. Romualdez (Romualdez). AO 27 set the
guidelines and procedure for accreditation of
government suppliers of pharmaceutical
products for sale or distribution to the public,
such accreditation to be valid for three years but
subject to annual review.
On January 25, 2000, Secretary Romualdez
issued AO 10 series of 20006 which amended
AO 27. Under Section VII7 of AO 10, the
accreditation period for government suppliers of
pharmaceutical products was reduced to two
years. Moreover, such accreditation may be
recalled, suspended or revoked after due
deliberation and proper notice by the DOH
Accreditation Committee, through its Chairman.
Section VII of AO 10 was later amended by AO
66 series of 2000,8 which provided that the two-
year accreditation period may be recalled,
suspended or revoked only after due
deliberation, hearing and notice by the DOH
Accreditation Committee, through its Chairman.
On August 28, 2000, the DOH issued
Memorandum No. 171-C9 which provided for a
list and category of sanctions to be imposed on
accredited government suppliers of
pharmaceutical products in case of adverse
findings regarding their products
(e.g. substandard, fake, or misbranded) or
violations committed by them during their
accreditation.
In line with Memorandum No. 171-C, the DOH,
through former Undersecretary Ma. Margarita M.
Galon (Galon), issued Memorandum No. 209
series of 2000,10 inviting representatives of 24
accredited drug companies, including herein
respondent Phil Pharmawealth, Inc. (PPI) to a
meeting on October 27, 2000. During the
meeting, Undersecretary Galon handed them
copies of a document entitled "Report on
Violative Products"11 issued by the Bureau of
Food and Drugs12 (BFAD), which detailed
violations or adverse findings relative to these
accredited drug companies’ products.
Specifically, the BFAD found that PPI’s products
which were being sold to the public were unfit for
human consumption.
During the October 27, 2000 meeting, the 24
drug companies were directed to submit within
10 days, or until November 6, 2000, their
respective explanations on the adverse findings
covering their respective products contained in
the Report on Violative Products.
Instead of submitting its written explanation
within the 10-day period as required, PPI
belatedly sent a letter13 dated November 13,
2000 addressed to Undersecretary Galon,
informing her that PPI has referred the Report
on Violative Products to its lawyers with
instructions to prepare the corresponding reply.
However, PPI did not indicate when its reply
would be submitted; nor did it seek an extension
of the 10-day period, which had previously
expired on November 6, 2000, much less offer
any explanation for its failure to timely submit its
reply. PPI’s November 13, 2000 letter states:
Madam,
This refers to your directive on 27 October 2000,
on the occasion of the meeting with selected
accredited suppliers, during which you made
known to the attendees of your requirement for
them to submit their individual comments on the
Report on Violative Products (the "Report")
compiled by your office and disseminated on
that date.
In this connection, we inform you that we have
already instructed our lawyers to prepare on our
behalf the appropriate reply to the Report
furnished to us. Our lawyers in time shall revert
to you and furnish you the said reply.
500 | PART 1 C O N S T I 1 FULLTEXT
Please be guided accordingly.
Very truly yours,
(signed)
ATTY. ALAN A.B. ALAMBRA
Vice-President for Legal and Administrative
Affairs14
In a letter-reply15 dated November 23, 2000
Undersecretary Galon found "untenable" PPI’s
November 13, 2000 letter and therein informed
PPI that, effective immediately, its accreditation
has been suspended for two years pursuant to
AO 10 and Memorandum No. 171-C.
In another December 14, 2000 letter16 addressed
to Undersecretary Galon, PPI through counsel
questioned the suspension of its accreditation,
saying that the same was made pursuant to
Section VII of AO 10 which it claimed was
patently illegal and null and void because it
arrogated unto the DOH Accreditation
Committee powers and functions which were
granted to the BFAD under Republic Act (RA)
No. 372017 and Executive Order (EO) No.
175.18 PPI added that its accreditation was
suspended without the benefit of notice and
hearing, in violation of its right to substantive and
administrative due process. It thus demanded
that the DOH desist from implementing the
suspension of its accreditation, under pain of
legal redress.
On December 28, 2000, PPI filed before the
Regional Trial Court of Pasig City a
Complaint19 seeking to declare null and void
certain DOH administrative issuances, with
prayer for damages and injunction against the
DOH, former Secretary Romualdez and DOH
Undersecretary Galon. Docketed as Civil Case
No. 68200, the case was raffled to Branch 160.
On February 8, 2002, PPI filed an Amended and
Supplemental Complaint,20 this time impleading
DOH Secretary Manuel Dayrit (Dayrit). PPI
claimed that AO 10, Memorandum No. 171-C,
Undersecretary Galon’s suspension order
contained in her November 23, 2000 letter, and
AO 14 series of 200121 are null and void for
being in contravention of Section 26(d) of RA
3720 as amended by EO 175, which states as
follows:
SEC. 26. x x x
(d) When it appears to the Director [of the BFAD]
that the report of the Bureau that any article of
food or any drug, device, or cosmetic secured
pursuant to Section twenty-eight of this Act is
adulterated, misbranded, or not registered, he
shall cause notice thereof to be given to the
person or persons concerned and such person
or persons shall be given an opportunity to be
heard before the Bureau and to submit evidence
impeaching the correctness of the finding or
charge in question.
For what it claims was an undue suspension of
its accreditation, PPI prayed that AO 10,
Memorandum No. 171-C, Undersecretary
Galon’s suspension order contained in her
November 23, 2000 letter, and AO 14 be
declared null and void, and that it be awarded
moral damages of ₱5 million, exemplary
damages of ₱1 million, attorney’s fees of ₱1
million, and costs of suit. PPI likewise prayed for
the issuance of temporary and permanent
injunctive relief.
In their Amended Answer,22 the DOH, former
Secretary Romualdez, then Secretary Dayrit,
and Undersecretary Galon sought the dismissal
of the Complaint, stressing that PPI’s
accreditation was suspended because most of
the drugs it was importing and distributing/selling
to the public were found by the BFAD to be
substandard for human consumption. They
added that the DOH is primarily responsible for
the formulation, planning, implementation, and
coordination of policies and programs in the field
of health; it is vested with the comprehensive
power to make essential health services and
goods available to the people, including
accreditation of drug suppliers and regulation of
importation and distribution of basic medicines
for the public.
Petitioners added that, contrary to PPI’s claim, it
was given the opportunity to present its side
within the 10-day period or until November 6,
2000, but it failed to submit the required
comment/reply. Instead, it belatedly submitted a
November 13, 2000 letter which did not even
constitute a reply, as it merely informed
petitioners that the matter had been referred by
PPI to its lawyer. Petitioners argued that due
process was afforded PPI, but because it did not
timely avail of the opportunity to explain its side,
the DOH had to act immediately – by
suspending PPI’s accreditation – to stop the
distribution and sale of substandard drug
products which posed a serious health risk to the
public. By exercising DOH’s mandate to promote
health, it cannot be said that petitioners
committed grave abuse of discretion.
In a January 8, 2001 Order,23 the trial court
partially granted PPI’s prayer for a temporary
restraining order, but only covering PPI’s
products which were not included in the list of
501 | PART 1 C O N S T I 1 FULLTEXT
violative products or drugs as found by the
BFAD.
In a Manifestation and Motion24 dated July 8,
2003, petitioners moved for the dismissal of Civil
Case No. 68200, claiming that the case was one
against the State; that the Complaint was
improperly verified; and lack of authority of the
corporate officer to commence the suit, as the
requisite resolution of PPI’s board of directors
granting to the commencing officer – PPI’s Vice
President for Legal and Administrative Affairs,
Alan Alambra, – the authority to file Civil Case
No. 68200 was lacking. To this, PPI filed its
Comment/Opposition.25
Ruling of the Regional Trial Court
In a June 14, 2004 Order,26 the trial court
dismissed Civil Case No. 68200, declaring the
case to be one instituted against the State, in
which case the principle of state immunity from
suit is applicable.
PPI moved for reconsideration,27 but the trial
court remained steadfast.28
PPI appealed to the CA.
Ruling of the Court of Appeals
Docketed as CA-G.R. CV No. 85670, PPI’s
appeal centered on the issue of whether it was
proper for the trial court to dismiss Civil Case
No. 68200.
The CA, in the herein assailed
Decision,29 reversed the trial court ruling and
ordered the remand of the case for the conduct
of further proceedings. The CA concluded that it
was premature for the trial court to have
dismissed the Complaint. Examining the
Complaint, the CA found that a cause of action
was sufficiently alleged – that due to defendants’
(petitioners’) acts which were beyond the scope
of their authority, PPI’s accreditation as a
government supplier of pharmaceutical products
was suspended without the required notice and
hearing as required by Section 26(d) of RA 3720
as amended by EO 175. Moreover, the CA held
that by filing a motion to dismiss, petitioners
were deemed to have hypothetically admitted
the allegations in the Complaint – which state
that petitioners were being sued in their
individual and personal capacities – thus
negating their claim that Civil Case No. 68200 is
an unauthorized suit against the State.
The CA further held that instead of dismissing
the case, the trial court should have deferred the
hearing and resolution of the motion to dismiss
and proceeded to trial. It added that it was
apparent from the Complaint that petitioners
were being sued in their private and personal
capacities for acts done beyond the scope of
their official functions. Thus, the issue of whether
the suit is against the State could best be
threshed out during trial on the merits, rather
than in proceedings covering a motion to
dismiss.
The dispositive portion of the CA Decision reads:
WHEREFORE, the appeal is hereby GRANTED.
The Order dated June 14, 2004 of the Regional
Trial Court of Pasig City, Branch 160, is
hereby REVERSED and SET-
ASIDE. ACCORDINGLY, this case is
REMANDED to the trial court for further
proceedings.
SO ORDERED.30
Petitioners sought, but failed, to obtain a
reconsideration of the Decision. Hence, they
filed the present Petition.
Issue
Petitioners now raise the following lone issue for
the Court’s resolution:
Should Civil Case No. 68200 be dismissed for
being a suit against the State?31
Petitioners’ Arguments
Petitioners submit that because PPI’s Complaint
prays for the award of damages against the
DOH, Civil Case No. 68200 should be
considered a suit against the State, for it would
require the appropriation of the needed amount
to satisfy PPI’s claim, should it win the case.
Since the State did not give its consent to be
sued, Civil Case No. 68200 must be dismissed.
They add that in issuing and implementing the
questioned issuances, individual petitioners
acted officially and within their authority, for
which reason they should not be held to account
individually.
Respondent’s Arguments
Apart from echoing the pronouncement of the
CA, respondent insists that Civil Case No. 68200
is a suit against the petitioners in their personal
502 | PART 1 C O N S T I 1 FULLTEXT
capacity for acts committed outside the scope of
their authority.
Our Ruling
The Petition is granted.
The doctrine of non-suability.
The discussion of this Court in Department of
Agriculture v. National Labor Relations
Commission32 on the doctrine of non-suability is
enlightening.
The basic postulate enshrined in the constitution
that ‘(t)he State may not be sued without its
consent,’ reflects nothing less than a recognition
of the sovereign character of the State and an
express affirmation of the unwritten rule
effectively insulating it from the jurisdiction of
courts. It is based on the very essence of
sovereignty. x x x [A] sovereign is exempt from
suit, not because of any formal conception or
obsolete theory, but on the logical and practical
ground that there can be no legal right as
against the authority that makes the law on
which the right depends. True, the doctrine, not
too infrequently, is derisively called ‘the royal
prerogative of dishonesty’ because it grants the
state the prerogative to defeat any legitimate
claim against it by simply invoking its
nonsuability. We have had occasion to explain in
its defense, however, that a continued
adherence to the doctrine of non-suability cannot
be deplored, for the loss of governmental
efficiency and the obstacle to the performance of
its multifarious functions would be far greater in
severity than the inconvenience that may be
caused private parties, if such fundamental
principle is to be abandoned and the availability
of judicial remedy is not to be accordingly
restricted.
The rule, in any case, is not really absolute for it
does not say that the state may not be sued
under any circumstance. On the contrary, as
correctly phrased, the doctrine only conveys,
‘the state may not be sued without its consent;’
its clear import then is that the State may at
times be sued. The State’s consent may be
given either expressly or impliedly. Express
consent may be made through a general law or
a special law. x x x Implied consent, on the other
hand, is conceded when the State itself
commences litigation, thus opening itself to a
counterclaim or when it enters into a contract. In
this situation, the government is deemed to have
descended to the level of the other contracting
party and to have divested itself of its sovereign
immunity. This rule, x x x is not, however,
without qualification. Not all contracts entered
into by the government operate as a waiver of its
non-suability; distinction must still be made
between one which is executed in the exercise
of its sovereign function and another which is
done in its proprietary capacity.33
As a general rule, a state may not be sued.
However, if it consents, either expressly or
impliedly, then it may be the subject of a
suit.34 There is express consent when a law,
either special or general, so provides. On the
other hand, there is implied consent when the
state "enters into a contract or it itself
commences litigation."35 However, it must be
clarified that when a state enters into a contract,
it does not automatically mean that it has waived
its non-suability. 36 The State "will be deemed to
have impliedly waived its non-suability [only] if it
has entered into a contract in its proprietary or
private capacity. [However,] when the contract
involves its sovereign or governmental
capacity[,] x x x no such waiver may be
implied."37 "Statutory provisions waiving [s]tate
immunity are construed in strictissimi juris. For,
waiver of immunity is in derogation of
sovereignty."38
The DOH can validly invoke state immunity.
a) DOH is an unincorporated agency which
performs sovereign or governmental
functions.
In this case, the DOH, being an "unincorporated
agency of the government"39 can validly invoke
the defense of immunity from suit because it has
not consented, either expressly or impliedly, to
be sued. Significantly, the DOH is an
unincorporated agency which performs functions
of governmental character.
The ruling in Air Transportation Office v.
Ramos40 is relevant, viz:
An unincorporated government agency without
any separate juridical personality of its own
enjoys immunity from suit because it is invested
with an inherent power of sovereignty.
Accordingly, a claim for damages against the
agency cannot prosper; otherwise, the doctrine
of sovereign immunity is violated. However, the
need to distinguish between an unincorporated
government agency performing governmental
function and one performing proprietary
functions has arisen. The immunity has been
upheld in favor of the former because its function
is governmental or incidental to such function; it
has not been upheld in favor of the latter whose
function was not in pursuit of a necessary
503 | PART 1 C O N S T I 1 FULLTEXT
function of government but was essentially a
business.41
b) The Complaint seeks to hold the DOH
solidarily and jointly liable with the other
defendants for damages which constitutes a
charge or financial liability against the state.
Moreover, it is settled that if a Complaint seeks
to "impose a charge or financial liability against
the state,"42 the defense of non-suability may be
properly invoked. In this case, PPI specifically
prayed, in its Complaint and Amended and
Supplemental Complaint, for the DOH, together
with Secretaries Romualdez and Dayrit as well
as Undersecretary Galon, to be held jointly and
severally liable for moral damages, exemplary
damages, attorney’s fees and costs of
suit.43 Undoubtedly, in the event that PPI
succeeds in its suit, the government or the state
through the DOH would become vulnerable to
an imposition or financial charge in the form of
damages. This would require an appropriation
from the national treasury which is precisely the
situation which the doctrine of state immunity
aims to protect the state from.
The mantle of non-suability extends to
complaints filed against public officials for
acts done in the performance of their official
functions.
As regards the other petitioners, to wit,
Secretaries Romualdez and Dayrit, and
Undersecretary Galon, it must be stressed that
the doctrine of state immunity extends its
protective mantle also to complaints filed against
state officials for acts done in the discharge and
performance of their duties.44 "The suability of a
government official depends on whether the
official concerned was acting within his official or
jurisdictional capacity, and whether the acts
done in the performance of official functions will
result in a charge or financial liability against the
government."45 Otherwise stated, "public officials
can be held personally accountable for acts
claimed to have been performed in connection
with official duties where they have acted ultra
vires or where there is showing of bad
faith."46 Moreover, "[t]he rule is that if the
judgment against such officials will require the
state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the
amount needed to pay the damages awarded
against them, the suit must be regarded as
against the state x x x. In such a situation, the
state may move to dismiss the [C]omplaint on
the ground that it has been filed without its
consent." 47
It is beyond doubt that the acts imputed against
Secretaries Romualdez and Dayrit, as well as
Undersecretary Galon, were done while in the
performance and discharge of their official
functions or in their official capacities, and not in
their personal or individual capacities.
Secretaries Romualdez and Dayrit were being
charged with the issuance of the assailed
orders. On the other hand, Undersecretary
Galon was being charged with implementing the
assailed issuances. By no stretch of imagination
could the same be categorized as ultra
vires simply because the said acts are well
within the scope of their authority. Section 4 of
RA 3720 specifically provides that the BFAD is
an office under the Office of the Health
Secretary. Also, the Health Secretary is
authorized to issue rules and regulations as may
be necessary to effectively enforce the
provisions of RA 3720.48 As regards
Undersecretary Galon, she is authorized by law
to supervise the offices under the DOH’s
authority,49 such as the BFAD. Moreover, there
was also no showing of bad faith on their part.
The assailed issuances were not directed only
against PPI. The suspension of PPI’s
accreditation only came about after it failed to
submit its comment as directed by
Undersecretary Galon. It is also beyond dispute
that if found wanting, a financial charge will be
imposed upon them which will require an
appropriation from the state of the needed
amount. Thus, based on the foregoing
considerations, the Complaint against them
should likewise be dismissed for being a suit
against the state which absolutely did not give its
consent to be sued. Based on the foregoing
considerations, and regardless of the merits of
PPI’s case, this case deserves a dismissal.
Evidently, the very foundation of Civil Case No.
68200 has crumbled at this initial juncture.
PPI was not denied due process.
However, we cannot end without a discussion of
PPI’s contention that it was denied due process
when its accreditation was suspended "without
due notice and hearing." It is undisputed that
during the October 27, 2000 meeting,
Undersecretary Galon directed representatives
of pharmaceutical companies, PPI included, to
submit their comment and/or reactions to the
Report on Violative Products furnished them
within a period of 10 days. PPI, instead of
submitting its comment or explanation, wrote a
letter addressed to Undersecretary Galon
informing her that the matter had already been
referred to its lawyer for the drafting of an
appropriate reply. Aside from the fact that the
said letter was belatedly submitted, it also failed
to specifically mention when such reply would be
504 | PART 1 C O N S T I 1 FULLTEXT
forthcoming. Finding the foregoing explanation MARIANO C. DEL CASTILLO
to be unmeritorious, Undersecretary Galon Associate Justice
ordered the suspension of PPI’s accreditation for
two years. Clearly these facts show that PPI was WE CONCUR:
not denied due process. It was given the
opportunity to explain its side. Prior to the ANTONIO T. CARPIO
suspension of its accreditation, PPI had the
Associate Justice
chance to rebut, explain, or comment on the Chairperson
findings contained in the Report on Violative
Products that several of PPI’s products are not
fit for human consumption. However, PPI DIOSDADO M.
ARTURO D. BRION
squandered its opportunity to explain. Instead of PERALTA*
Associate Justice
complying with the directive of the DOH Associate Justice
Undersecretary within the time allotted, it instead
haughtily informed Undersecretary Galon that JOSE PORTUGAL PEREZ
the matter had been referred to its lawyers. Associate Justice
Worse, it impliedly told Undersecretary Galon to
just wait until its lawyers shall have prepared the
ATTESTATION
appropriate reply. PPI however failed to mention
when it will submit its "appropriate reply" or how
long Undersecretary Galon should wait. In the I attest that the conclusions in the above
meantime, PPI’s drugs which are included in the Decision had been reached in consultation
Report on Violative Products are out and being before the case was assigned to the writer of the
sold in the market. Based on the foregoing, we opinion of the Court's Division.
find PPI’s contention of denial of due process
totally unfair and absolutely lacking in basis. At ANTONIO T. CARPIO
this juncture, it would be trite to mention that Associate Justice
"[t]he essence of due process in administrative Chairperson
proceedings is the opportunity to explain one’s
side or seek a reconsideration of the action or CERTIFICATION
ruling complained of. As long as the parties are
given the opportunity to be heard before Pursuant to Section 13, Article VII of the
judgment is rendered, the demands of due Constitution and the Division Chairperson's
process are sufficiently met. What is offensive to Attestation, I certify that the conclusions in the
due process is the denial of the opportunity to be above Decision had been reached in
heard. The Court has repeatedly stressed that consultation before the case was assigned to the
parties who chose not to avail themselves of the writer of the opinion of the Court's Division.
opportunity to answer charges against them
cannot complain of a denial of due process."50
MARIA LOURDES P. A. SERENO
Chief Justice
Incidentally, we find it inieresting that in the
earlier case of Department q( Health v. Phil
Pharmawealth, Inc. 51respondent filed a
Complaint against DOH anchored on the same
issuances which it assails in the present case. In
the earlier case of Department of Health v. Phil Footnotes
Pharmawealth, Jnc., 52 PPI submitted to the
DOH a request for the inclusion of its products in * Per Raffle dated February 4, 2013.
the list of accredited drugs as required by AO 27
series of 1998 which was later amended by AO 1
Rollo, pp. 27-44.
10 series of 2000. In the instant case, however,
PPI interestingly claims that these issuances are 2
Id. at 7-21; penned by Associate
null and void. Justice Monina Arevalo-Zenarosa and
concurred in by Presiding Justice
WHEREFORE, premises considered, the Conrado M. Vasquez, Jr. and Associate
Petition is GRANTED. Civil Case No. 68200 is Justice Edgardo F. Sundiam.
ordered DISMISSED.
3
Id. at 22-23.
SO ORDERED.
4
CA rolla, pp. 156-164.

505 | PART 1 C O N S T I 1 FULLTEXT

5
Records, pp. 16-17. Committee the power to suspend or
revoke a supplier’s accreditation after
6
Id. at 19-25. deliberation and notice, and without
need of a hearing.
7
Id. at 24.
22
Id. at 489-505.
8
Id. at 26.
23
Id. at 124.
9
Id. at 111.
24
Id. at 500-513.
10
Id. at 27.
25
Id. at 532-541.
11
Id. at 28-40.
Id. at 555-561; penned by Judge
26

Per Republic Act No. 9711 or the Food

12 Amelia A. Fabros.
and Drug Administration (FDA) Act of
2009 which was signed by the President
27
Id. at 562-569.
on August 18, 2009, the Bureau of Food
and Drugs (BFAD) was renamed and is 28
See Order dated April 19, 2005, id. at
now called the Food and Drug 593.
Administration (FDA).
29
Rollo, pp. 7-21.
13
Records, p. 41.
30
Id. at 21. Emphases in the original.
14
Id.
31
Id. at 730.
15
Id. at 42.
G.R. No. 104269, November 11, 1993,
32

16
Id. at 43-44. 227 SCRA 693.

17
FOOD, DRUG, AND COSMETIC ACT. 33
Id. at 698-699. Citations omitted.
June 22, 1963.
United States of America v. Judge
34

FURTHER AMENDING REPUBLIC

18
Guinto, 261 Phil. 777, 790 (1990).
ACT NO 3720, ENTITLED "AN ACT TO
ENSURE THE SAFETY AND PURITY 35
Id. at 792.
OF FOODS, DRUGS, AND
COSMETICS BEING MADE 36
Id. at 793.
AVAILABLE TO THE PUBLIC BY
CREATING THE FOOD AND DRUG
ADMINISTRATION WHICH SHALL
37
Id. at 795.
ADMINISTER AND ENFORCE THE
LAWS PERTAINING THERETO", AS 38
Equitable Insurance and Casualty Co.,
AMENDED, AND FOR OTHER Inc. v. Smith, Bell & Co. (Phils.), Inc.,
PURPOSES. May 22, 1987. 127 Phil. 547, 549 (1967).

19
Records, pp. 2-15. 39
Department of Health v. Phil
Pharmawealth, Inc., 547 Phil. 148, 154
20
Id. at 400-424. (2007).

21
Id. at 454-457. Administrative Order G.R. No. 159402, February 23, 2011,
40

No. 14 was a later issuance by DOH 644 SCRA 36.

Secretary Dayrit which was
subsequently included in PPI’s amended 41
Id. at 42-43. Citations omitted.
and supplemental complaint as one of
the issuances sought to be nullified. It Department of Health v. Phil
42

provided for new accreditation Pharmawealth, Inc., supra at 154.

guidelines and granted the Accreditation
506 | PART 1 C O N S T I 1 FULLTEXT
43
See Complaint, pp. 12-13, records, pp. 52
ld
13-14; Amended and Supplemental
Complaint, p. 13, records, p. 422.

United States of America v. Judge

44

Guinto, supra note 34 at 791.

45
Department of Health v. Phil
Pharmawealth, Inc., supra note 39 at
153.

46
M. H. Wylie v. Rarang, G.R. No.
74135, May 28, 1992, 209 SCRA 357,
368. Citation omitted. See also United
States of America v. Reyes, G.R. No.
79253, March 1, 1993, 219 SCRA 192,
209 where the Court held:

x x x The doctrine of immunity

from suit will not apply and may
not be invoked where the public
official is being sued in his
private and personal capacity as
an ordinary citizen. The cloak of
protection afforded the officers
and agents of the government is
removed the moment they are
sued in their individual capacity.
This situation usually arises
where the public official acts
without authority or in excess of
the powers vested in him. It is a
well-settled principle of law that
a public official may be liable in
his personal private capacity for
whatever damage he may have
caused by his act done with
malice and in bad faith, or
beyond the scope of his
authority or jurisdiction.
(Citations omitted)

47
United States of America v. Judge
Guinto, supra note 34 at 791-792. See
also Department of Health v. Phil
Pharmawealth, Inc., supra note 39 at
155.

See Section 26, Republic Act No.

48

3720.

See Section 12, Chapter 3, Title IX,

49

Book IV, Administrative Code of 1987.

50
Flores v. Montemavor, Ci.R. No.
170146. llll''~ 1' .. 20 i i, 651 SCEA 396,
406-407. Citations omitted

51
Supranote39.

507 | PART 1 C O N S T I 1 FULLTEXT

 SECOND DIVISION Constancio Abuganda and Pio Gabon, the
drivers of the vehicles, failed to present
G.R. No. 115634. April 27, 2000 proper documents and/or licenses. Thus,
the apprehending team seized and
FELIPE CALUB and RICARDO impounded the vehicles and its load of
VALENCIA, DEPARTMENT of lumber at the DENR-PENR (Department of
ENVIRONMENT and NATURAL Environment and Natural Resources-
RESOURCES (DENR), CATBALOGAN, Provincial Environment and Natural
SAMAR, Petitioners, v. COURT OF Resources) Office in Catbalogan..4 Seizure
APPEALS, MANUELA T. BABALCON, receipts were issued but the drivers
and CONSTANCIO refused to accept the receipts..5 Felipe
ABUGANDA, Respondents. Calub, Provincial Environment and Natural
Resources Officer, then filed before the
Provincial Prosecutors Office in Samar, a
DECISION
criminal complaint against Abuganda, in
Criminal Case No. 3795, for violation of
QUISUMBING, J.: Section 68 [78), Presidential Decree 705
as amended by Executive Order 277,
For review is the decision.1 dated May 27, otherwise known as the Revised Forestry
1994, of the Court of Appeals in CA-G.R. Code.6c räläwvi rtua lib räry

SP No. 29191, denying the petition filed

by herein petitioners for certiorari, On January 31, 1992, the impounded
prohibition and mandamus, in order to vehicles were forcibly taken by Gabon and
annul the Order dated May 27, 1992, by Abuganda from the custody of the DENR,
the Regional Trial Court of Catbalogan, prompting DENR Officer Calub this time to
Samar. Said Order had denied petitioners file a criminal complaint for grave coercion
(a) Motion to Dismiss the replevin case against Gabon and Abuganda. The
filed by herein private respondents, as complaint was, however, dismissed by the
well as (b) petitioners Motion for Public Prosecutor..7
Reconsideration of the Order of said trial
crä läwvirtuali brä ry

court dated April 24, 1992, granting an

On February 11, 1992, one of the two
application for a Writ of replevin..2
vehicles, with plate number FCN 143, was
cräläwvi rtua lib räry

again apprehended by a composite team

The pertinent facts of the case, borne by of DENR-CENR in Catbalogan and
the records, are as follows: Philippine Army elements of the 802nd
Infantry Brigade at Barangay Buray,
On January 28, 1992, the Forest Paranas, Samar. It was again loaded with
Protection and Law Enforcement Team of forest products with an equivalent volume
the Community Environment and Natural of 1,005.47 board feet, valued at
Resources Office (CENRO) of the DENR P10,054.70. Calub duly filed a criminal
apprehended two (2) motor vehicles, complaint against Constancio Abuganda, a
described as follows: certain Abegonia, and several John Does,
in Criminal Case No. 3625, for violation of
"1. Motor Vehicle with Plate No. HAK-733 Section 68 [78], Presidential Decree 705
loaded with one thousand and twenty six as amended by Executive Order 277,
(1,026) board feet of illegally sourced otherwise known as the Revised Forestry
lumber valued at P8,544.75, being driven Code..8 c räläwvi rtual ibrä ry

by one Pio Gabon and owned by [a

certain] Jose Vargas. In Criminal Cases Nos. 3795 and 3625,
however, Abegonia and Abuganda were
2. Motor Vehicle with Plate No. FCN-143 acquitted on the ground of reasonable
loaded with one thousand two hundred doubt. But note the trial court ordered
twenty four and ninety seven (1,224.97) that a copy of the decision be furnished
board feet of illegally-sourced lumber the Secretary of Justice, in order that the
valued at P9,187.27, being driven by one necessary criminal action may be filed
Constancio Abuganda and owned by [a against Noe Pagarao and all other persons
certain] Manuela Babalcon. ".3crä läwvirt ualib rä ry
responsible for violation of the Revised
Forestry Code. For it appeared that it was
508 | PART 1 C O N S T I 1 FULLTEXT
Pagarao who chartered the subject vehicle
and ordered that cut timber be loaded on
it..9
cräläwvirt ualib räry
Subsequently, herein private respondents
Manuela Babalcon, the vehicle owner, and
Constancio Abuganda, the driver, filed a
complaint for the recovery of possession
of the two (2) impounded vehicles with an
application for replevin against herein
petitioners before the RTC of Catbalogan.
The trial court granted the application for
replevin and issued the corresponding writ
in an Order dated April 24,
1992..10 Petitioners filed a motion to
dismiss which was denied by the trial
court.11 crä läwvirt ualib rä ry
Thus, on June 15, 1992, petitioners filed
with the Supreme Court the present
Petition for Certiorari, Prohibition
and Mandamus with application for
Preliminary Injunction and/or a Temporary
Restraining Order. The Court issued a
TRO, enjoining respondent RTC judge
from conducting further proceedings in the
civil case for replevin; and enjoining
private respondents from taking or
attempting to take the motor vehicles and
forest products seized from the custody of
the petitioners. The Court further
instructed the petitioners to see to it that
the motor vehicles and other forest
products seized are kept in a secured
place and protected from deterioration,
said property being in custodia legis and
subject to the direct order of the Supreme
Court..12 In a Resolution issued on
September 28, 1992, the Court referred
said petition to respondent appellate court
for appropriate disposition..13
On May 27, 1994, the Court of Appeals
denied said petition for lack of merit. It
ruled that the mere seizure of a motor
vehicle pursuant to the authority granted
by Section 68 [78] of P.D. No. 705 as
amended by E.O. No. 277 does not
automatically place said conveyance
in custodia legis. According to the
appellate court, such authority of the
Department Head of the DENR or his duly
authorized representative to order the
confiscation and disposition of illegally
obtained forest products and the
conveyance used for that purpose is not
absolute and unqualified. It is subject to
pertinent laws, regulations, or policies on
that matter, added the appellate court.
The DENR Administrative Order No. 59,
series of 1990, is one such regulation, the
appellate court said. For it prescribes the
guidelines in the confiscation, forfeiture
and disposition of conveyances used in the
commission of offenses penalized under
Section 68 [78] of P.D. No. 705 as
amended by E.O. No. 277..14 c räläwvi rtua lib räry
Additionally, respondent Court of Appeals
noted that the petitioners failed to observe
the procedure outlined in DENR
Administrative Order No. 59, series of
1990. They were unable to submit a
report of the seizure to the DENR
Secretary, to give a written notice to the
owner of the vehicle, and to render a
report of their findings and
recommendations to the Secretary.
Moreover, petitioners failure to comply
with the procedure laid down by DENR
Administrative Order No. 59, series of
1990, was confirmed by the admission of
petitioners counsel that no confiscation
order has been issued prior to the seizure
of the vehicle and the filing of the replevin
suit. Therefore, in failing to follow such
procedure, according to the appellate
court, the subject vehicles could not be
considered in custodia legis..15 c räläwvirtual ibrä ry
Respondent Court of Appeals also found
no merit in petitioners claim that private
respondents complaint for replevin is a
suit against the State. Accordingly,
petitioners could not shield themselves
under the principle of state immunity as
the property sought to be recovered in the
instant suit had not yet been lawfully
cräläwvi rt ualib räry adjudged forfeited in favor of the
government. Moreover, according to
respondent appellate court, there could be
no pecuniary liability nor loss of property
that could ensue against the government.
It reasoned that a suit against a public
officer who acted illegally or beyond the
scope of his authority could not be
considered a suit against the State; and
that a public officer might be sued for
illegally seizing or withholding the
possession of the property of another..16 cräläwv irt ualib rä ry
Respondent court brushed aside other
grounds raised by petitioners based on the
claim that the subject vehicles were
validly seized and held in custody because
they were contradicted by its own
509 | PART 1 C O N S T I 1 FULLTEXT
findings..17 Their petition was found
without merit.18cräläwv irt ualib rä ry
Now, before us, the petitioners assign the
following errors:.19 c räläwvi rtua lib räry
(1) THE COURT OF APPEALS ERRED IN
HOLDING THAT MERE SEIZURE OF A
CONVEYANCE PURSUANT TO SECTION 68-
A [78-A] OF P.D. NO. 705 AS AMENDED
BY EXECUTIVE ORDER 277 DOES NOT
PLACE SAID CONVEYANCE IN CUSTODIA
LEGIS;
(2) THE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE OPERATIVE ACT
GIVING RISE FOR THE SUBJECT
CONVEYANCE TO BE IN CUSTODIA LEGIS
IS ITS LAWFUL SEIZURE BY THE DENR
PURSUANT TO SECTION 68-A [78-A] OF
P.D. NO. 705, AS AMENDED BY E.O. NO.
277; AND
(3) THE COURT OF APPEALS ERRED IN
HOLDING THAT THE COMPLAINT FOR
REPLEVIN AGAINST THE PETITIONERS IS
NOT A SUIT AGAINST THE STATE.
In brief, the pertinent issues for our
consideration are:
(1) Whether or not the DENR-seized
motor vehicle, with plate number FCN
143, is in custodia legis.
(2) Whether or not the complaint for the
recovery of possession of impounded
vehicles, with an application for replevin,
is a suit against the State.
We will now resolve both issues.
The Revised Forestry Code authorizes the
DENR to seize all conveyances used in the
commission of an offense in violation of
Section 78. Section 78 states:
Sec. 78. Cutting, Gathering, and or
Collecting Timber, or Other Forest
Products without License. Any person who
shall cut, gather, collect, remove timber or
other forest products from any forestland,
or timber from alienable or disposable
public land, or from private land, without
any authority, or possess timber or other
forest products without the legal
documents as required under existing
forest laws and regulations, shall be
punished with the penalties imposed
under Articles 309 and 310 of the Revised
Penal Code mis
The Court shall further order the
confiscation in favor of the government of
the timber or any forest products cut,
gathered, collected, removed, or
possessed, as well as the machinery,
equipment, implements and tools illegally
used in the area where the timber or
forest products are found.
This provision makes mere possession of
timber or other forest products without
the accompanying legal documents
unlawful and punishable with the penalties
imposed for the crime of theft, as
prescribed in Articles 309-310 of the
Revised Penal Code. In the present case,
the subject vehicles were loaded with
forest products at the time of the seizure.
But admittedly no permit evidencing
authority to possess and transport said
load of forest products was duly
presented. These products, in turn, were
deemed illegally sourced. Thus there was
a prima facie violation of Section 68 [78]
of the Revised Forestry Code, although as
found by the trial court, the persons
responsible for said violation were not the
ones charged by the public prosecutor.
The corresponding authority of the DENR
to seize all conveyances used in the
commission of an offense in violation of
Section 78 of the Revised Forestry Code is
pursuant to Sections 78-A and 89 of the
same Code. They read as follows:
Sec. 78-A. Administrative Authority of the
Department Head or His Duly Authorized
Representative to Order Confiscation. -- In
all cases of violation of this Code or other
forest laws, rules and regulations, the
Department Head or his duly authorized
representative, may order the confiscation
of any forest products illegally cut,
gathered, removed, or possessed or
abandoned, and all conveyances used
either by land, water or air in the
commission of the offense and to dispose
of the same in accordance with pertinent
laws, regulations or policies on the matter.
510 | PART 1 C O N S T I 1 FULLTEXT
Sec. 89. Arrest; Institution of criminal
actions. -- A forest officer or employee of
the Bureau [Department] or any
personnel of the Philippine
Constabulary/Philippine National Police
shall arrest even without warrant any
person who has committed or is
committing in his presence any of the
offenses defined in this Chapter. He shall
also seize and confiscate, in favor of the
Government, the tools and equipment
used in committing the offense...
[Emphasis supplied.]
Note that DENR Administrative Order No.
59, series of 1990, implements Sections
78-A and 89 of the Forestry Code, as
follows:
Sec. 2. Conveyances Subject to
Confiscation and Forfeiture. -- All
conveyances used in the transport of any
forest product obtained or gathered
illegally whether or not covered with
transport documents, found spurious or
irregular in accordance with Sec. 68-A
[78-A] of P.D. No. 705, shall be
confiscated in favor of the government or
disposed of in accordance with pertinent
laws, regulations or policies on the matter.
Sec. 4. Who are Authorized to Seize
Conveyance. -- The Secretary or his duly
authorized representative such as the
forest officers and/or natural resources
officers, or deputized officers of the DENR
are authorized to seize said conveyances
subject to policies and guidelines pertinent
thereto. Deputized military personnel and
officials of other agencies apprehending
illegal logs and other forest products and
their conveyances shall notify the nearest
DENR field offices, and turn over said
forest products and conveyances for
proper action and disposition. In case
where the apprehension is made by DENR
field officer, the conveyance shall be
deposited with the nearest
CENRO/PENRO/RED Office as the case
may be, for safekeeping wherever it is
most convenient and secured. [Emphasis
supplied.]
Upon apprehension of the illegally-cut
timber while being transported without
pertinent documents that could evidence
title to or right to possession of said
timber, a warrantless seizure of the
involved vehicles and their load was
allowed under Section 78 and 89 of the
Revised Forestry Code.
Note further that petitioners failure to
observe the procedure outlined in DENR
Administrative Order No. 59, series of
1990 was justifiably explained. Petitioners
did not submit a report of the seizure to
the Secretary nor give a written notice to
the owner of the vehicle because on the
3rd day following the seizure, Gabon and
Abuganda, drivers of the seized vehicles,
forcibly took the impounded vehicles from
the custody of the DENR. Then again,
when one of the motor vehicles was
apprehended and impounded for the
second time, the petitioners, again were
not able to report the seizure to the DENR
Secretary nor give a written notice to the
owner of the vehicle because private
respondents immediately went to court
and applied for a writ of replevin. The
seizure of the vehicles and their load was
done upon their apprehension for a
violation of the Revised Forestry Code. It
would be absurd to require a confiscation
order or notice and hearing before said
seizure could be effected under the
circumstances.
Since there was a violation of the Revised
Forestry Code and the seizure was in
accordance with law, in our view the
subject vehicles were validly deemed
in custodia legis. It could not be subject to
an action for replevin. For it is property
lawfully taken by virtue of legal process
and considered in the custody of the law,
and not otherwise..20 c räläwvi rtua lib räry
In Mamanteo, et. al. v. Deputy Sheriff
Magumun, A.M. No. P-98-1264,
promulgated on July 28, 1999, the case
involves property to be seized by a Deputy
Sheriff in a replevin suit. But said property
were already impounded by the DENR due
to violation of forestry laws and, in fact,
already forfeited in favor of the
government by order of the DENR. We
said that such property was deemed
in custodia legis. The sheriff could not
insist on seizing the property already
subject of a prior warrant of seizure. The
appropriate action should be for the sheriff
to inform the trial court of the situation by
way of partial Sheriffs Return, and wait for
511 | PART 1 C O N S T I 1 FULLTEXT
the judges instructions on the proper
procedure to be observed.
Note that property that is validly
deposited in custodia legis cannot be the
subject of a replevin suit. In Mamanteo v.
Deputy Sheriff Magumun, we elucidated
further:
". . . the writ of replevin has been
repeatedly used by unscrupulous plaintiffs
to retrieve their chattel earlier taken for
violation of the Tariff and Customs Code,
tax assessment, attachment or execution.
Officers of the court, from the presiding
judge to the sheriff, are implored to be
vigilant in their execution of the law
otherwise, as in this case, valid seizure
and forfeiture proceedings could easily be
undermined by the simple devise of a writ
of replevin...".21
crä läwvirtuali brä ry
On the second issue, is the complaint for
the recovery of possession of the two
impounded vehicles, with an application
for replevin, a suit against the State?
Well established is the doctrine that the
State may not be sued without its
consent..22 And a suit against a public
officer for his official acts is, in effect, a
suit against the State if its purpose is to
hold the State ultimately
liable..23 However, the protection afforded
to public officers by this doctrine generally
applies only to activities within the scope
of their authority in good faith and without
willfulness, malice or corruption.24 In the
present case, the acts for which the
petitioners are being called to account
were performed by them in the discharge
of their official duties. The acts in question
are clearly official in nature.25 In
implementing and enforcing Sections 78-A
and 89 of the Forestry Code through the
seizure carried out, petitioners were
performing their duties and functions as
officers of the DENR, and did so within the
limits of their authority. There was no
malice nor bad faith on their part. Hence,
a suit against the petitioners who
represent the DENR is a suit against the
State. It cannot prosper without the
States consent.
Given the circumstances in this case, we
need not pursue the Office of the Solicitor
Generals line for the defense of petitioners
concerning exhaustion of administrative
remedies. We ought only to recall that
exhaustion must be raised at the earliest
time possible, even before filing the
answer to the complaint or pleading
asserting a claim, by a motion to
dismiss..26 If not invoked at the proper
time, this ground for dismissal could be
deemed waived and the court could take
cognizance of the case and try it.27 c räläwvi rtua lib räry
ACCORDINGLY , the Petition
is GRANTED, and the assailed Decision of
the Court of Appeals in CA-G.R. SP No.
29191 is SET ASIDE. Consequently, the
Order issued by the Regional Trial Court of
Catbalogan, dated May 27, 1992, and the
Writ of replevin issued in the Order dated
April 24, 1992, are ANNULLED. The
Sheriff of the Regional Trial Court of
Catbalogan, Branch 29, is directed to take
possession of the subject motor vehicle,
with plate number FCN 143, for delivery to
the custody of and appropriate disposition
by petitioners. Let a copy of this decision
be provided the Honorable Secretary of
Justice for his appropriate action, against
any and all persons responsible for the
abovecited violation of the Revised
Forestry Code.
Costs against private Respondents.
SO ORDERED.
Bellosillo, (Chairman), Mendoza,
Buena, and De Leon, Jr., JJ., concur.
Endnotes:
1
Rollo, pp. 22-27.
2
CA Records, p. 43.
3
Rollo, p. 23.
4
Id. at 23.
5
Id. at 74.
6
Sec. 78. Cutting, Gathering, and/or Collecting Timber, or Other Forest Products without
License. Any person who shall cut, gather, collect, remove timber or other forest products
from any forestland, or timber from alienable or disposable public land, or from private land,
without any authority, or possess timber or other forest products without the legal documents
as required under existing forest laws and regulations, shall be punished with the penalties
imposed under Articles 309 and 310 of the Revised Penal Code. . .
The Court shall further order the confiscation in favor of the government of the timber or any
forest products cut, gathered, collected, removed, or possessed, as well as the machinery,
equipment, implements and tools illegally used in the area where the timber or forest products
are found. (Emphasis supplied.)
512 | PART 1 C O N S T I 1 FULLTEXT
7
Rollo, p. 70.

8
Id. at 23, 78.

9
Id. at 75, 85.

10
CA Records, p. 43.

11
Supra, note 4.

12
Id. at 18-19.

13
Id. at 21.

14
Id. at 26-A.

15
Id. at 25-27.

16
Id. at 27.

17
Ibid.

18
Ibid.

19
Id. at 6.

20
Bagalihog v. Fernandez, 198 SCRA 614, 621 (1991)

21
Mamanteo, et. al. v. Deputy Sheriff Magumun, A.M. No. P-98-1264, July 28, 1999,
citing Pacis v. Hon. Averia,18 SCRA 907 (1966)

22
CONST., Art. XVI, sec. 3.

23
De Leon, The Law on Public Officers and Election Law, 2nd ed., 1994, pp. 228-229.

24
Philippine Racing Club, Inc., et al. v. Bonifacio, et al., 109 Phil. 233, 241 (1960)

25
Sanders v. Veridiano II, 162 SCRA 88, 96 (1988)

26
Section 1, Rule 16, 1997 Rules of Court.

SECTION 1. Grounds. -- Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.

27
Soto v. Jareno, 144 SCRA 116, 119 [1986). See also Section 1[j), Rule 16, 1997 Rules of
Court.

513 | PART 1 C O N S T I 1 FULLTEXT

 THIRD DIVISION
G.R. No. 142362 May 3, 2006
PHILIPPINE AGILA SATELLITE INC. and
MICHAELC. U. DE GUZMAN, Complainants,
vs.
JOSEFINA TRINIDAD-LICHAUCO
Undersecretary for Communications,
Department of Transportation and
Communication (DOTC), Respondents.
DECISION
TINGA, J.:
This Petition for Review on Certiorari seeks the
reversal of the Decision1 dated 21 February
2000 of the Court of Appeals in C.A. G.R. No.
SP 49422. The assailed Decision authorized the
dismissal of a civil complaint against respondent
Josefina Trinidad-Lichauco (Lichauco), former
Undersecretary for Communications of the
Department of Transportation and
Communication (DOTC), on the premise that the
complaint constituted a suit against the State.
A brief rundown of the relevant facts is in order.
Petitioner Philippine Agila Satellite Inc. (PASI) is
a duly organized corporation, whose President
and Chief Executive Officer is co-petitioner
Michael C.U. De Guzman. PASI was established
by a consortium of private telecommunications
carriers2 which in 1994 had entered into a
Memorandum of Understanding (MOU) with the
DOTC, through its then Secretary Jesus Garcia,
concerning the planned launch of a Philippine-
owned satellite into outer space. Under the
MOU, the launch of the satellite was to be an
endeavor of the private sector, and the satellite
itself to be owned by the Filipino-owned
consortium (subsequently organized as
PASI).3 The consortium was to grant the
Philippine government one (1) transponder free
of charge for the government's exclusive use for
non-commercial purpose, as well as the right of
first refusal to another one (1) transponder in the
Philippine satellite, if available.4 The Philippine
government, through the DOTC, was tasked
under the MOU to secure from the International
Telecommunication Union the required orbital
slot(s) and frequency assignment(s) for the
Philippine satellite.
PASI itself was organized by the consortium in
1996. The government, together with PASI,
coordinated through the International
Telecommunication Union two (2) orbital slots,
designated as 161º East Longitude and 153º
East Longitude, for Philippine satellites. On 28
June 1996, PASI wrote then DOTC Secretary
Amado S. Lagdameo, Jr., seeking for official
Philippine government confirmation on the
assignment of the two aforementioned Philippine
orbital slots to PASI for its satellites, which PASI
had designated as the Agila satellites.5 Secretary
Lagdameo, Jr. replied in a letter dated 3 July
1996, confirming "the Philippine Government's
assignment of Philippine orbital slots 161E and
153E to [PASI] for its [Agila] satellites."6
PASI avers that after having secured the
confirmation from the Philippine government, it
proceeded with preparations for the launching,
operation and management of its satellites,
including the availment of loans, the increase in
its capital, negotiation with business partners,
and an initial payment of US$3.5 Million to the
French satellite manufacturer. However,
respondent Lichauco, then DOTC
Undersecretary for Communications, allegedly
"embarked on a crusade to malign the name of
[Michael de Guzman] and sabotage the
business of PASI." Lichauco's purported efforts
against PASI culminated allegedly in her offering
orbital slot 153º East Longitude
for bidding to other parties sometime in
December 1997, despite the prior assignment to
PASI of the said slot.7 It was later claimed by
PASI that Lichauco subsequently awarded the
orbital slot to an entity whose indentity was
unknown to PASI.8
Aggrieved by Lichauco's actions, PASI and De
Guzman instituted on 23 January 1998 a civil
complaint against Lichauco, by then the Acting
Secretary of the DOTC, and the "Unknown
Awardee" who was to be the recipient of orbital
slot 153º East Longitude. The complaint,
alleging three (3) causes of action, was for
injunction, declaration of nullity of award, and
damages. The first cause of action, for
injunction, sought to establish that the award of
orbital slot 153º East Longitude should be
enjoined since the DOTC had previously
assigned the same orbital slot to PASI. The
second cause of action, for declaration of nullity
of award, averred that the award to the unknown
bidder is null and void, as it was rendered by
Lichauco beyond her authority.9
The third cause of action, for damages, imputed
several acts to Lichauco as part of her alleged
"crusade" to malign the name of plaintiff [D]e
Guzman and sabotage the business of [PASI]:
12. xxx
514 | PART 1 C O N S T I 1 FULLTEXT
(a) On 4 December 1996, in a meeting
with the members of the Board of
Directors of plaintiff corporation,
defendant Lichauco then uttered
disparaging and defamatory comments
against plaintiff de Guzman. These
defamatory remarks triggered efforts
from within the plaintiff corporation
aimed at ousting plaintiff de Guzman
from his position.
(b) Defendant Lichauco, then an
undersecretary of DOTC, wrote Mr. Jesli
Lapuz on 5 December 1996 (barely two
days after plaintiff de Guzman wrote
him) to deny that the DOTC has
assigned the two (2) Philippine orbital
slots to plaintiff corporation. Defendant
Lichauco falsely asserted that only
orbital slot 161 E was assigned to
plaintiff, orbital slot 153 E was not.
In the same letter, defendant Lichauco
branded as FALSE plaintiff de
Guzman's claim that "Agila" is a
registered corporate name of plaintiff
corporation.
A copy of the letter is attached as Annex
E.
(c) Not contented, defendant Lichauco,
again for reasons known only to her,
and with malice aforethought, made
defamatory remarks against plaintiffs
during a telecommunications forum held
in Makati City sometime in October 1997
in the presence of public officials and
business executives.
(d) Defendant Lichauco did not spare
plaintiff corporation from her unprovoked
defamation. Defendant Lichauco
arrogantly said that she had asked
President Fidel V. Ramos to sue plaintiff
Michael de Guzman. With the same
degree of arrogance she threatened
plaintiff corporation not to use the name
"Agila", otherwise she would fight
plaintiff corporation and would make
sure that the name of Agila would never
be given back to plaintiff corporation.
(e) To top it all, defendant Lichauco
without basis and with evident bad faith,
said that plaintiff corporation will never
pay its contractors.
(f) In December 1997, defendant
Lichauco delivered the coup de' grace.
Again, acting unilaterally, without prior
notice to plaintiff corporation and in
gross violation of DOTC's earlier
assignment to plaintiff corporation of
orbital slot 153 E, defendant Lichauco
offered said slot to interested applicants.
A copy of the notice of offer is attached
as Annex F.
13. Plaintiffs learned of defendant Lichauco's
acts after orbital slot 153 E was offered for
bidding. To plaintiff coproration's knowledge, the
orbital slot was eventually awarded to defendant
Unknown Awardee.
x x x x10
The complaint alleged that since Lichauco's act
of offering and awarding orbital slot 153º East
Longitude was patently illegal and violative of
DOTC's prior commitment to PASI, Lichauco
should be enjoined from performing any acts
and entering into or executing any agreement or
arrangement of whatever nature in connection
with the said orbital slot. The complaint also
averred that the purported award of the orbital
slot to the "Unknown Awardee was illegal, and
thus should be declared null and void. Finally,
the complaint alleged a cause of action for
damages against Lichauco, cast in the following
manner:
xxxx
21. Defendant Lichauco attacked the good name
and reputation of plaintiffs.
22. She willfully caused damage to plaintiffs by
orchestrating the above-described acts which
are contrary to law; morals and basic norms of
good faith.
23. She interefered with and violated plaintiff
corporation's contract with DOTC by offering and
awarding orbital slot 153 E to defendant
Unknown Awardee.
24. Because of defendant Lichauco's
reprehensible acts, plaintiffs suffered actual
damages of at least P10 million each, for all of
which defendant Lichauco should be held liable
to pay.
25. By reason of defendant Lichauco's illegal
and malicious acts, plaintiff corporation's
business name and goodwill was tarnished, for
which plaintiff corporation should be indemnified
by way of moral damages in the amount of at
least P10 million.
515 | PART 1 C O N S T I 1 FULLTEXT
 26. For the same reasons, plaintiff de
Guzman suffered and continue to suffer
extreme mental anguish, serious
anxiety, wounded feelings, moral shock
and besmirched reputation, for all of
which plaintiff de Guzman should be
indemnified in the amount of at least
P10 million.
27. Defendant Lichauco should also be
sanctioned, as a deterrent for public good, to
pay each plaintiff exemplary damages in the
amount of at least P5 million.
28. In order to protect and enforce their rights,
plaintiffs were compelled to institute this suit,
engage the services of counsel and incur
litigation expenses, for all of which plaintiffs
should be indemnified in the amount of at least
P500 Thousand each.11
xxxx
In sum, petitioners sought the following reliefs
for the three (3) causes of action:
xxxx
3. After trial of the issues, render judgment as
follows:
[a] On the first cause of action, making
permanent the writ of preliminary
injunction;
[b] On the second cause of action,
declaring the offer and award of orbital
slot 153 E to defendant Unknown
Awardee null and void.
[c] On the third cause of action, directing
defendant Lichauco to pay the following
sums:
i. P10 million each to plaintiffs
as actual damages;
ii. P10 million to plaintiff
corporation as moral damages;
iii. P10 million to plaintiff de
Guzman as moral damages;
iv. P5 million each to plaintiffs
as exemplary damages;
v. P500 Thousand each to
plaintiffs as attorney's fees and
litigation expenses.
x x x x12
The complaint was filed before the Regional
Trial Court (RTC) of Mandaluyong City, and
subsequently raffled to Branch 214. On 2
February 1998, the RTC issued a temporary
restraining order against Lichauco, who received
the summons together with the complaint on 28
January 1998. Lichauco failed to file an answer
within the reglementary period, but eight (8)
days after the lapse thereof, she filed a
Manifestation and Motion asking for a new five
(5)-day period, or until 25 February 1998, to file
a responsive pleading to the complaint.
However, she filed instead a Motion to Admit
with attached Motion to Dismiss on 27 February
1998. She rooted her prayer for the dismissal of
the complaint primarily on the grounds that the
suit is a suit against the State which may not be
sued without its consent; that the complaint
stated no cause of action; and that the
petitioners had failed to exhaust administrative
remedies by failing to seek recourse with the
Office of the President.
In an order13 dated 14 August 1998, the RTC
denied the motion to dismiss. It characterized
the defense of state immunity as "at very least a
contentious issue which can not be resolved by
mere allegations in the pleadings but which can
be best threshed out in a litig[i]ous forum where
parties are accorded enormous (sic) opportunity
to argue for the ascertainment of whether the act
complained of are indeed within the parameters
and prerogatives of the authority exercising the
same."14 The RTC also noted that the allegations
in the complaint regarding the ultimate facts
sufficiently presented an ultra vires act of
Lichauco, and that she was being sued in her
personal capacity. As to the argument pertaining
to the non-exhaustion of administrative
remedies, the RTC noted that the principle is not
an inflexible rule, and may be dispensed with
when its application would cause great and
irreparable damage or when it would not
constitute a plain, speedy and adequate
remedy.15
Lichauco assailed the RTC order through a
Petition for Certiorari under Rule 65 before the
Court of Appeals, which subsequently nullified
the RTC order in the Decision now assailed
before us. The Court of Appeals sustained the
contention that the complaint is a suit against the
State with the following ratiocination:
516 | PART 1 C O N S T I 1 FULLTEXT
The suit is to the mind of this court a suit against
the state.1avv phil.net
The notice of offer signed by herein petitioner
allegedly tainted with bad faith was done in the
exercise of and in pursuance of an official duty.
Her duties are as follows:
SEC. 10. Powers and Duties of the
Undersecretary. The Undersecretary shall:
(1) Advise and assist the Secretary in
the formulation and implementation of
department objectives and policies;
(2) Oversee all the operational activities
of the department for which he shall be
responsible to the Secretary;
(3) Coordinate the programs and
projects of the department and be
responsible for its economical, efficient
and effective administration:
xxxxxxxxx
It is apparent from the above enumeration that
the petitioner is directly under and answerable to
the DOTC Secretary. We can therefore conclude
that her official acts such as the said "notice of
offer" was with the blessing and prior approval of
the DOTC Secretary himself.
Being an official act, it is also protected by the
presumption that the same was performed in
good faith and in the regular performance of
official duty.
"Acts in Line of Duty or under Color of
Authority. - As a rule, a public officer, whether
judicial, quasi-judicial, or executive, is not
personally liable to one injured in consequence
of an act performed within the scope of his
official authority, and in the line of his official
duty. In order that acts may be done within the
scope of official authority, it is not necessary that
they be prescribed by statute, or even that they
be specifically directed or requested by a
superior officer, but it is sufficient if they are
done by an officer in relation to matters
committed by law to his control or supervision, or
that they have more or less connection with such
matters, or that they are governed by a lawful
requirement of the department under whose
authority the officer is acting. Under this
principle, state building commissioners who, in
obedience to a stature, discharge one who has
been employed to construct a state building,
take possession of the work, and place it in the
hands of another contractor, are not liable to the
former contractor in damages, since in so doing
they are merely acting in the line of their duty.
An officer is not personally responsible for the
necessary and unavoidable destruction of goods
stored in buildings, when such buildings were
destroyed by him in the lawful performance of a
public duty imposed on him by a valid and
constitutional statute."
xxxxxxxxx
Error or Mistake in Exercise of Authority. -
Where an officer is invested with discretion and
is empowered to exercise his judgment in
matters brought before him he is sometimes
called a quasi-judicial officer, and when so
acting he is usually given immunity from liability
to persons who may be injured as the result of
an erroneous or mistaken decision, however,
erroneous judgment may be, provided the acts
complained of are done within the scope of the
officer's authority, and without willfulness,
malice, or corruption." (43 Am. Jur., pp. 85-86).
In Sanders vs. Veridiano[16], the Supreme Court
held:
"Given the official character of the above-
described letters, we have to conclude that the
petitioners were, legally speaking, being sued as
officers of the United States government. As
they have acted on behalf of that government,
and within the scope of their authority, it is that
government and not the petitioners personally,
that is responsible for their acts. Assuming that
the trial can proceed and it is proved that the
claimants have a right to the payment of
damages, such award will have to be satisfied
not by the petitioners in their personal capacities
but by the United States government as their
principal. This will require that government, viz.:
the appropriation of the necessary amount to
cover the damages awarded, thus making the
action a suit against that government without its
consent.
There should be no question by now that such
complaint cannot prosper unless the government
sought to be held ultimately liable has given its
consent to be sued. So we have ruled not only in
Baer but in many other decisions where we
upheld the doctrine of state immunity as
applicable not only to our own government but
also to foreign States sought to be subjected to
the jurisdiction of our courts.
xxxxxxxxx
517 | PART 1 C O N S T I 1 FULLTEXT
The Court finds that, even under the law of
public officers, the acts of the petitioners are
protected by the presumption of good faith,
which has not been overturned by the private
respondents. Even mistakes concededly
committed by such public officers are not
actionable as long as it is not shown that they
were motivated by malice or gross negligence
amounting to bad faith. This too is well-settled."17
Preliminarily, we discuss the procedural grounds
cited by petitioners which they assert are
sufficient to have caused the dismissal of
Lichauco's petition before the Court of Appeals.
Petitioners claim that contrary to Section 1, Rule
65 of the 1997 Rules of Civil Procedure,
Lichauco failed to attach all pleadings and
documents relevant to her petition, and that
those that were attached were merely "duplicate
original copies." Lichauco counters that for the
viability of her petition for certiorari, all that she
needed to attach were her motion to dismiss, the
RTC orders acting on such motion, her motion
for reconsideration of the denial of her motion to
dismiss, and petitioners' opposition to said
motion for reconsideration. She claims that only
these motions and submission were relevant to
the resolution of her petition.18
In her comment, Lichaucho claims that she did
not have to attach the complaint to the copy of
the petition she sent to the petitioners herein,
since the latter obviously retained the original
copy of the complaint they filed.19 However, her
petition before the appellate court does not
indicate that the same complaint was included
as an attachment, and indeed, there is a curious
absence of any averment on Lichuaco's part that
she indeed attached the said complaint to her
petition.20 Certainly, in a petition for certiorari
assailing the denial of a motion to dismiss a
complaint, the very complaint itself is a
document relevant and pertinent to the special
civil action. It should be remembered that unlike
in an ordinary appeal that is given due
course,21 the case record is not automatically
elevated to the court exercising jurisdiction over
a special civil action for certiorari; hence there is
an even more impelling need to attach all
pleadings and documents to the special civil
action, as mandated under Section 1, Rule 65 of
the 1997 Rules of Civil Procedure. After all, how
could the court a quo properly ascertain whether
or not the motion to dismiss itself should have
been granted if it did not have a copy of the
complaint sought to be dismissed itself.
Nonetheless, the requirement to attach such
relevant pleadings under Section 1, Rule 65 is
read in relation to Section 3, Rule 46, which
states that the failure of the petitioner to comply
with any of the documentary requirements, such
as the attachment of such relevant pleadings,
"shall be sufficient ground for the dismissal of
the petition." The procedural rule accords
sufficient discretion to the court hearing the
special civil action whether or not to dismiss the
petition outright for failure to comply with said
requirement. If the court does dismiss the
petition on that ground, the dismissal would be
justifiable under Section 3, Rule 46, and
generally such action of the court cannot be
assailed as constituting either grave abuse of
discretion or reversible error of law. If the court,
on the other hand, takes cognizance of the
petition despite such lapses, the phrasing of
Section 3, Rule 46 sufficiently justifies such
adjudicative recourse. Indeed, the ultimate logic
behind rules of procedure being the promotion of
the objective of securing a just, speedy and
inexpensive disposition of every action and
proceeding,22 the higher interests of justice may
at times sufficiently warrant the allowance of the
petition for certiorari despite such lapses,
especially if they are nonetheless correctible
through subsequent submissions.
In any event, the Court is willing to overlook
Lichauco's failure to attach the complaint in her
petition for certiorari before the Court of Appeals,
an oversight sadly ignored by the appellate
court. There are weighty issues at hand relating
to the doctrine of state immunity from suit and
the requisites of a motion to dismiss.
There is a connective issue between these two
aspects in that if the State is sued without its
consent, the corresponding suit must be
dismissed. At times, it would be teasingly
obvious, even from the moment of the filing of
the complaint, that the suit is one against the
State. A cursory examination of the caption of
the complaint can sometimes betray such
proscribed intent, as when the suit is directly
initiated against the Republic of the Philippines,
any foreign government, or an unincorporated
government agency as the named respondents.
In such cases, obviously there is need for
immediate caution, although if it is somehow
established that those respondents had given
their consent to be sued, the suit may
nonetheless prosper.
The present action was denominated against
Lichauco and the unknown awardee, Lichauco
was identified in the complaint as "acting
Secretary of the [DOTC]."23 The hornbook rule is
that a suit for acts done in the performance of
official functions against an officer of the
government by a private citizen which would
result in a charge against or financial liability to
the government must be regarded as a suit
518 | PART 1 C O N S T I 1 FULLTEXT
against the State itself, although it has not been
formally impleaded.24 However, government
immunity from suit will not shield the public
official being sued if the government no longer
has an interest to protect in the outcome of a
suit; or if the liability of the officer is personal
because it arises from a tortious act in the
performance of his/her duties.
Petitioner insists that Lichauco is being sued for
her acts committed in excess of her
authority, ultra vires in nature, and tortious in
character. The Court of Appeals responded that
such acts fell within Lichauco's official duties as
DOTC Undersecretary, thus enjoying the
presumption that they were performed in good
faith and in the regular performance of official
duty. This rationale is pure sophistry and must
be rejected outright.
We do not doubt the existence of the
presumptions of "good faith" or "regular
performance of official duty", yet these
presumptions are disputable25 and may be
contradicted and overcome by other
evidence.26 Many civil actions are oriented
towards overcoming any number of these
presumptions, and a cause of action can
certainly be geared towards such effect. The
very purpose of trial is to allow a party to present
evidence overcome the disputable presumptions
involved. Otherwise, if trial is deemed irrelevant
or unnecessary, owing to the perceived
indisputability of the presumptions, the judicial
exercise would be relegated to a mere
ascertainment of what presumptions apply in a
given case, nothing more. Consequently, the
entire Rules of Court is rendered as excess
verbiage, save perhaps for the provisions laying
down the legal presumptions.
If this reasoning of the Court of Appeals were
ever adopted as a jurisprudential rule, no public
officer could ever be sued for acts executed
beyond their official functions or authority, or for
tortious conduct or behavior, since such acts
would "enjoy the presumption of good faith and
in the regular performance of official duty".
Indeed, few civil actions of any nature would
ever reach the trial stage, if a case can be
adjudicated by a mere determination from the
complaint or answer as to which legal
presumptions are applicable. For example, the
presumption that a person is innocent of a wrong
is a disputable presumption on the same level as
that of the regular performance of official
duty.27 A civil complaint for damages necessarily
alleges that the defendant committed a wrongful
act or omission that would serve as basis for the
award of damages. With the rationale of the
Court of Appeals, such complaint can be
dismissed upon a motion to dismiss solely on
the ground that the presumption is that a person
is innocent of a wrong.
So obviously, the Decision of the Court of
Appeals cannot receive the imprimatur of this
Court. Still, the question of whether Lichauco
may validly invoke state immunity from suit to
secure the outright dismissal of petitioners'
complaint warrants closer examination.
As earlier noted, the complaint alleges three (3)
causes of action against Lichauco: one for
injunction against her performing any act in
relation to orbital slot 153º East Longitude; one
for declaration of nullity of award, seeking to
nullify the alleged award of orbital slot 153º East
Longitude; and one for damages against
Lichauco herself. Evidently, the first two causes
of action stem from Lichauco's act of offering
orbital slot 153º East Longitude for bidding,
through the Notice of Offer which was attached
to the complaint.
In her Motion to Dismiss, Lichauco asserts that
she is being sued for issuing the aforementioned
Notice of Offer, which fell within her official
functions as DOTC Undersecretary for
Communications. She claims that it was
Secretary Lagdameo who authorized her to offer
orbital slot 153º East Longitude for bidding, and
she thus acted well within the scope of her
authority to advise and assist the DOTC
Secretary in the formulation and implementation
of department objectives and policies.
The Notice of Offer cites Department Circular
97-01, signed by then DOTC Secretary Arturo
Enrile, as authority for it. The Court has
examined the aforementioned Department
Circular, issued on 17 October 1997, which
establishes the "Guidelines on the Procurement
of Orbital Slots and Frequency Registration of
Philippine Satellites". Therein, the DOTC is
mandated "to conduct a bidding process in case
there are competing applications for any one of
the assigned or applied-for-orbital slots"28.
Further, the Department Circular states that "the
DOTC shall publish in three newspapers of
general circulation a notice of offer for the
government assigned, initiated and applied for
orbital slots."29
Thus, insofar as the first two causes of action
are concerned, Lichauco may have a point when
she asserts that they were based on acts which
she performed in her capacity as DOTC
Undersecretary. But does this necessarily mean
that these two causes of action may thus be
dismissed on the basis of state immunity of suit?
519 | PART 1 C O N S T I 1 FULLTEXT
As stated earlier, it is when the acts done in the
performance of official functions by an officer of
the government will result in a charge against or
financial liability to the government that the
complaint must be regarded as a suit against the
State itself. However, the distinction must also
be raised between where the government official
concerned performs an act in his/her official and
jurisdictional capacity and where he performs an
act that constitutes grave abuse of discretion
tantamount to lack of jurisdiction. In the latter
case, the Constitution itself assures the
availability of judicial review, and it is the official
concerned who should be impleaded as the
proper party- defendant or respondent.
On this point, our ruling in J.M. Tuazon & Co. v.
Land Tenure Administration30 is material.
Petitioners therein had filed a special civil action
for prohibition to nullify Republic Act No. 2616,
or law that directed the expropriation of the
Tatalon Estate in Quezon City. Impleaded as
respondents were the officials and government
agency tasked to undertake such expropriation.
The respondents alleged that the petition for
prohibition was actually a suit against the State
without its consent. The Court, through then
Associate Justice (later Chief Justice) Enrique
Fernando, debunked the argument, ruling
instead that the petition was within the ambit of
judicial review:
[T]he power of judicial review is granted, if not
expressly, at least by clear implication from the
relevant provisions of the Constitution. This
power may be exercised when the party
adversely affected by either a legislative or
executive act, or a municipal ordinance for that
matter, files the appropriate suit to test its
validity. The special civil action of prohibition has
been relied upon precisely to restrain the
enforcement of what is alleged to be an
unconstitutional statute. As it is a fundamental
postulate that the Constitution as the supreme
law is binding on all governmental agencies,
failure to observe the limitations found therein
furnishes a sufficient ground for a declaration of
nullity of the government measure challenged.
The argument then that the government is the
adverse party and that, therefore, must consent
to its being sued certainly is far from persuasive.
x x x x31
The Court further noted that it was well-settled
for the purpose of obtaining a judicial declaration
of nullity, "it is enough if the respondents or
defendants named be the government officials
who would give operation and effect to official
action allegedly tainted with
unconstitutionality."32
Unlike in J.M. Tuason, the case at bar does not
seek to nullify an unconstitutional law or
measure. However, the first two causes of action
do sufficiently impute grave abuse of discretion
against Lichauco in her official capacity. Since
judicial review of acts alleged to have been
tainted with grave abuse of discretion is
guaranteed by the Constitution, it necessarily
follows in such instances that it is the official
concerned who should be impleaded as
defendant or respondent in the appropriate suit.
Moreover, if the suit had been directed against
Lichauco alone, and in her personal capacity,
yet it sought, as it now does, the nullification of
the Notice of Offer or the awards thereon, such
remedy could not avail even if granted.
Lichauco, in her personal capacity, cannot be
directed to set aside the Notice of Offer, the
award of the bid, or to issue a new award
herself. It is only because Lichauco was sued in
her official capacity as the DOTC
Undersecretary that she, or her successors in
office, could be judicially compelled to act in
such fashion.
As to the first two (2) causes of action, the Court
rules that the defense of state immunity from suit
do not apply since said causes of action cannot
be properly considered as suits against the State
in constitutional contemplation. These causes of
action do not seek to impose a charge or
financial liability against the State, but merely the
nullification of state action. The prayers attached
to these two causes of action are for the
revocation of the Notice of Bid and the
nullification of the purported award, nothing
more. Had it been so that petitioner additionally
sought damages in relation to said causes of
action, the suit would have been considered as
one against the State. Had the petitioner
impleaded the DOTC itself, an unincorporated
government agency, and not Lichauco herself,
the suit would have been considered as one
against the State. But neither circumstance
obtains in this case.
Parenthetically, it may be noted that at the time
of the filing of the complaint, Lichauco herself
was already the acting head of the DOTC, owing
to the sudden death of then Secretary Enrile a
few days before. At that stage, any suit seeking
to nullify the Notice of Bid and the alleged award
to the "Unknown Bidder" should have properly
denominated Lichauco as the respondent, and
not the DOTC.
Nonetheless, as to the first two causes of action,
there was a viable ground to dismiss the
complaint: the non-exhaustion of administrative
remedies. Indeed, such ground was alleged by
520 | PART 1 C O N S T I 1 FULLTEXT
Lichauco in her Motion to Dismiss. Yet the
principle of non-exhaustion of administrative
remedies admits to several exceptions. In its
Order denying the motion to dismiss the
complaint, the RTC adequately dispensed with
the objection, applying the established
exceptions to the rule of non-exhaustion of
administrative remedies. To wit:
Turning to the matter pertaining to non-
exhaustion of administrative remedies, it is
fundamental that this principle is not an inflexible
rule. It yields to many accepted exceptions.
(Rocamora vs. RTC - Cebu, G.R. No. 65307).
As in this case, this principle can be dispensed
with when its application would cause great and
irreparable damage and when it does not
provide a plain, speedy and adequate remedy.
When the subject orbital slot 153 E was bidded
out to other applicants, the damage and injury
plaintiffs stand to suffer was clear, present, and
substantiated that this Court was impelled to
provide urgent needed measure such as the
issuance of writ of injunction against the public
defendant. Indeed, under the circumstances
then obtaining it was impractical for the plaintiffs
to first proceed to the administrative official
concerned before taking court action.33
A different set of principles applies to the third
cause of action, anchored as it is on alleged acts
that are tortious in character or otherwise
beyond the scope of Lichauco's official duties.
The complaint alleges that Lichauco uttered
several disparaging and defamatory remarks
against petitioners and made false assertions
against them in her letter to the Land Bank
President.
The veracity of those allegations is of course
presented at the trial to be determined on the
basis of the evidence. However, if proven, they
would establish liability on the part of Lichauco
that is not shielded by the doctrine of state
immunity from suit. The doctrine, as summarized
in Shauf v. Court of Appeals :34
While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of
the state for acts allegedly performed by them in
the discharge of their duties. The rule is that if
the judgment against such officials will require
the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of
the amount needed to pay the damages
awarded against them, the suit must be
regarded as against the state itself although it
has not been formally impleaded. It must be
noted, however, that the rule is not so all-
encompassing as to be applicable under all
circumstances.
It is a different matter where the public
official is made to account in his capacity as
such for acts contrary to law and injurious to
the rights of plaintiff. As was clearly set forth
by Justice Zaldivar in Director of the Bureau
of Telecommunications, et al. vs. Aligaen,
etc., et al. 'Inasmuch as the State authorizes
only legal acts by its officers, unauthorized
acts of government officials or officers are
not acts of the State, and an action against
the officials or officers by one whose rights
have been invaded or violated by such acts,
for the protection of his rights, is not a suit
against the State within the rule of immunity
of the State from suit.In the same tenor, it has
been said that an action at law or suit in equity
against a State officer or the director of a State
department on the ground that, while claiming to
act for the State, he violates or invades the
personal and property rights or the plaintiff,
under an unconstitutional act or under an
assumption of authority which he does not have,
is not a suit against the State within the
constitutional provision that the State may not be
sued without its consent.' The rationale for this
ruling is that the doctrine of state immunity
cannot be used as an instrument for perpetrating
an injustice.35
The doctrine poses no controversy if after trial
on the merits, it is established that the public
official concerned had committed illegal or
tortious acts against the plaintiff. How does it
apply in relation to a motion to dismiss on the
ground of state immunity from suit, necessarily
lodged before trial on the merits?
Our ruling in United States of America v.
Reyes36 warrants due consideration. The Court
therein, through then Associate Justice (later
Chief Justice) Hilario G. Davide, Jr., ruled that a
motion to dismiss averring immunity from suit of
a State and its functionaries was actually
grounded on the specific ground for dismissal of
the lack of cause of action, for even assuming
that the defendants had committed the injurious
acts complained of, "no action may be
maintained thereon, because of the principle of
state immunity."37 Pertinently, the Court noted
that "a motion to dismiss on the ground of failure
to state a cause of action hypothetically admits
the truth of the allegations in the complaint."
Thus, Lichauco, in alleging in her Motion to
Dismiss that she is shielded by the State's
immunity from suit, to hypothetically admitted the
truth of the allegations in the complaint. Such
521 | PART 1 C O N S T I 1 FULLTEXT
hypothetical admission has to be deemed a
concession on her part that she had performed
the tortious or damaging acts against the
petitioners, which if true, would hold her liable for
damages.
Of course, Lichauco could very well raise the
defense of state immunity from suit in regard to
the third cause of action with the assertion that
the acts complained of constituting said cause of
action fell within her official functions and were
not tortuous in character. Still, to establish such
assertions of fact, a full-blown trial on the merits
would be necessary, as would the case be if
Lichauco raised the defense that she did not
commit these acts complained of. Certainly,
these defenses cannot be accorded merit before
trial, factual as they are in character.
All told, contrary to the ruling of the Court of
Appeals, we find no grave abuse of discretion on
the part of the RTC in denying Lichauco's Motion
to Dismiss.
WHEREFORE, the PETITION is GRANTED.
The Decision of the Court of Appeals dated 21
February 2000 is SET ASIDE and the Order
dated 14 August 1998 of the Regional Trial
Court of Mandaluyong City is REINSTATED.
The Regional Trial Court is ordered to try and
decide the case on the merits with deliberate
dispatch. No costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairman
ANTONIO T. CONCHITA CARPIO
CARPIO MORALES
Associate Justice Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest 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's Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division
CERTIFICATION
Pursuant to Section 13, Article VII of the
Constitution, and the Division Chairman's
Attestation, it is hereby certified 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's Division,
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Penned by Associate Justice Eugenio
Labotoria, concurred in by Associate
Justices Jesus Elbinias and Marina
Buzon.
2
Particularly consisting of Capitol
Wireless, Inc.; Clavecilla Electronics and
Telecom Corporation; Digital
Telecommunications Philippines;
Domestic Satellite Phils.; Eastern
Telecommunications Philippines, Inc.;
Express Telecommunications Company;
GMCR, Inc; International
Communications Corporation; Isla
Communications Company, Inc.; Liberty
Broadcasting Network, Inc; Philippine
Communications Satellite Corporation;
Philippine Global Communications, Inc.;
Philippine Long Distance Telephone
Company; Pilipino Telephone
Corporation; Radio Communications of
the Philippines, Inc.; and Smart
Communications, Inc. See rollo, pp. 57-
59.
3
Id. at 60.
4
Id. at 61.
5
Id. at 64.
6
Id. at 65.
7
The assignment of the other orbital
slot, 161º East Longitude, was
previously affirmed by the DOTC to
PASI and formally effected through an
522 | PART 1 C O N S T I 1 FULLTEXT
Agreement on Transponder Agreement See Section 3, Rule 131, Rules of
26

dated 16 June 1997. See rollo, p. 89. Court.

8
See id. at 50. See Section 3(a), Rule 131, Rules of
27

Court.
9
Id. at 50-51.
28
Article III, sec. 6, DOTC Department
10
Rollo, pp. 49-50. Circular No. 97-01 (17 October 1997).

11
Id. at 51-52.
29
Article III, sec. 7, id.

12
Id. at 53. G.R. No. L-21064, 18 February 1970,
30

31 SCRA 413.
13
Penned by Judge Edwin D. Sorongon.
31
Id. at 421-422.
14
Rollo, p. 112.
32
Id. at 422.
15
Id. at 113.
33
Rollo, p. 113.
16
Cited as 162 SCRA 88.
G.R. No. 90314, 27 November 1990,
34

191 SCRA 713.

17
Rollo, pp. 39-42.

18
Id. at 214.
35
Id. at 726-727. Citations omitted.

36
Id. at 206.
19
See id. at 215.

20
In her Comment, the Office of the G.R. No. 79253, 1 March 1993, 219
37

SCRA 192.
Solicitor General, in behalf of Lichauco,
states: "Respondent [Lichauco] attached
the following to her petition filed before
the Court of Appeals, to wit: (a) Original
copies of the assailed orders as
Annexes "A" and "B"; (b) [respondent]'s
motion to dismiss as Annex "C"; (c)
Copy of [respondent]'s motion for
reconsideration as Annex "D"; and (d)
[petitioner]'s opposition to the motion for
reconsideration as Annex "E." See id. at
214.

21
See Section 8, Rule 45, 1997 Rules of
Civil Procedure.

22
See Section 6, Rule 1, 1997 Rules of
Civil Procedure.

23
Rollo, p. 46.

24
See e.g., Isberto v. Raquiza, G.R. No.
L-35001, 25 September 1975, 67 SCRA
116, 119 (1975).

See e.g., Section 3(m), Rule 131,

25

Rules of Court.

523 | PART 1 C O N S T I 1 FULLTEXT

 EN BANC
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE
ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avanceña for defendant..
TRENT, J.:
This is an appeal by both parties from a
judgment of the Court of First Instance of the city
of Manila in favor of the plaintiff for the sum of
P14,741, together with the costs of the cause.
Counsel for the plaintiff insist that the trial court
erred (1) "in limiting the general damages which
the plaintiff suffered to P5,000, instead of
P25,000 as claimed in the complaint," and (2) "in
limiting the time when plaintiff was entirely
disabled to two months and twenty-one days
and fixing the damage accordingly in the sum of
P2,666, instead of P6,000 as claimed by plaintiff
in his complaint."
The Attorney-General on behalf of the defendant
urges that the trial court erred: (a) in finding that
the collision between the plaintiff's motorcycle
and the ambulance of the General Hospital was
due to the negligence of the chauffeur; (b) in
holding that the Government of the Philippine
Islands is liable for the damages sustained by
the plaintiff as a result of the collision, even if it
be true that the collision was due to the
negligence of the chauffeur; and (c) in rendering
judgment against the defendant for the sum of
P14,741.
The trial court's findings of fact, which are fully
supported by the record, are as follows:
It is a fact not disputed by counsel for
the defendant that when the plaintiff,
riding on a motorcycle, was going
toward the western part of Calle Padre
Faura, passing along the west side
thereof at a speed of ten to twelve miles
an hour, upon crossing Taft Avenue and
when he was ten feet from the
southwestern intersection of said
streets, the General Hospital
ambulance, upon reaching said avenue,
instead of turning toward the south, after
passing the center thereof, so that it
would be on the left side of said avenue,
as is prescribed by the ordinance and
the Motor Vehicle Act, turned suddenly
and unexpectedly and long before
reaching the center of the street, into the
right side of Taft Avenue, without having
sounded any whistle or horn, by which
movement it struck the plaintiff, who was
already six feet from the southwestern
point or from the post place there.
By reason of the resulting collision, the
plaintiff was so severely injured that,
according to Dr. Saleeby, who examined
him on the very same day that he was
taken to the General Hospital, he was
suffering from a depression in the left
parietal region, a would in the same
place and in the back part of his head,
while blood issued from his nose and he
was entirely unconscious.
The marks revealed that he had one or
more fractures of the skull and that the
grey matter and brain was had suffered
material injury. At ten o'clock of the night
in question, which was the time set for
performing the operation, his pulse was
so weak and so irregular that, in his
opinion, there was little hope that he
would live. His right leg was broken in
such a way that the fracture extended to
the outer skin in such manner that it
might be regarded as double and the
would be exposed to infection, for which
reason it was of the most serious nature.
At another examination six days before
the day of the trial, Dr. Saleeby noticed
that the plaintiff's leg showed a
contraction of an inch and a half and a
curvature that made his leg very weak
and painful at the point of the fracture.
Examination of his head revealed a
notable readjustment of the functions of
the brain and nerves. The patient
apparently was slightly deaf, had a light
weakness in his eyes and in his mental
condition. This latter weakness was
always noticed when the plaintiff had to
do any difficult mental labor, especially
when he attempted to use his money for
mathematical calculations.
According to the various merchants who
testified as witnesses, the plaintiff's
mental and physical condition prior to
the accident was excellent, and that
after having received the injuries that
have been discussed, his physical
condition had undergone a noticeable
depreciation, for he had lost the agility,
524 | PART 1 C O N S T I 1 FULLTEXT
 energy, and ability that he had
constantly displayed before the accident
as one of the best constructors of
wooden buildings and he could not now
earn even a half of the income that he
had secured for his work because he
had lost 50 per cent of his efficiency. As
a contractor, he could no longer, as he
had before done, climb up ladders and
scaffoldings to reach the highest parts of
the building.
As a consequence of the loss the
plaintiff suffered in the efficiency of his
work as a contractor, he had to
dissolved the partnership he had formed
with the engineer. Wilson, because he
was incapacitated from making
mathematical calculations on account of
the condition of his leg and of his mental
faculties, and he had to give up a
contract he had for the construction of
the Uy Chaco building."
We may say at the outset that we are in full
accord with the trial court to the effect that the
collision between the plaintiff's motorcycle and
the ambulance of the General Hospital was due
solely to the negligence of the chauffeur.
The two items which constitute a part of the
P14,741 and which are drawn in question by the
plaintiff are (a) P5,000, the award awarded for
permanent injuries, and (b) the P2,666, the
amount allowed for the loss of wages during the
time the plaintiff was incapacitated from pursuing
his occupation. We find nothing in the record
which would justify us in increasing the amount
of the first. As to the second, the record shows,
and the trial court so found, that the plaintiff's
services as a contractor were worth P1,000 per
month. The court, however, limited the time to
two months and twenty-one days, which the
plaintiff was actually confined in the hospital. In
this we think there was error, because it was
clearly established that the plaintiff was wholly
incapacitated for a period of six months. The
mere fact that he remained in the hospital only
two months and twenty-one days while the
remainder of the six months was spent in his
home, would not prevent recovery for the whole
time. We, therefore, find that the amount of
damages sustained by the plaintiff, without any
fault on his part, is P18,075.
As the negligence which caused the collision is a
tort committed by an agent or employee of the
Government, the inquiry at once arises whether
the Government is legally-liable for the damages
resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit
against the Government of the
Philippine Islands and authorizing the
Attorney-General of said Islands to
appear in said suit.
Whereas a claim has been filed against
the Government of the Philippine Islands
by Mr. E. Merritt, of Manila, for damages
resulting from a collision between his
motorcycle and the ambulance of the
General Hospital on March twenty-fifth,
nineteen hundred and thirteen;
Whereas it is not known who is
responsible for the accident nor is it
possible to determine the amount of
damages, if any, to which the claimant is
entitled; and
Whereas the Director of Public Works
and the Attorney-General recommended
that an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in
the courts against the Government, in
order that said questions may be
decided: Now, therefore,
By authority of the United States, be it
enacted by the Philippine Legislature,
that:
SECTION 1. E. Merritt is hereby
authorized to bring suit in the Court of
First Instance of the city of Manila
against the Government of the
Philippine Islands in order to fix the
responsibility for the collision between
his motorcycle and the ambulance of the
General Hospital, and to determine the
amount of the damages, if any, to which
Mr. E. Merritt is entitled on account of
said collision, and the Attorney-General
of the Philippine Islands is hereby
authorized and directed to appear at the
trial on the behalf of the Government of
said Islands, to defendant said
Government at the same.
SEC. 2. This Act shall take effect on its
passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted
Act, simply waive its immunity from suit or did it
also concede its liability to the plaintiff? If only
525 | PART 1 C O N S T I 1 FULLTEXT
the former, then it cannot be held that the Act
created any new cause of action in favor of the
plaintiff or extended the defendant's liability to
any case not previously recognized.
All admit that the Insular Government (the
defendant) cannot be sued by an individual
without its consent. It is also admitted that the
instant case is one against the Government. As
the consent of the Government to be sued by
the plaintiff was entirely voluntary on its part, it is
our duty to look carefully into the terms of the
consent, and render judgment accordingly.
The plaintiff was authorized to bring this action
against the Government "in order to fix the
responsibility for the collision between his
motorcycle and the ambulance of the General
Hospital and to determine the amount of the
damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, . . . ." These
were the two questions submitted to the court for
determination. The Act was passed "in order that
said questions may be decided." We have
"decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time
an employee of the defendant, and we have also
fixed the amount of damages sustained by the
plaintiff as a result of the collision. Does the Act
authorize us to hold that the Government is
legally liable for that amount? If not, we must
look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having
been "modeled after the Federal and State
Governments in the United States," we may look
to the decisions of the high courts of that country
for aid in determining the purpose and scope of
Act No. 2457.
In the United States the rule that the state is not
liable for the torts committed by its officers or
agents whom it employs, except when expressly
made so by legislative enactment, is well settled.
"The Government," says Justice Story, "does not
undertake to guarantee to any person the fidelity
of the officers or agents whom it employs, since
that would involve it in all its operations in
endless embarrassments, difficulties and losses,
which would be subversive of the public
interest." (Claussen vs. City of Luverne, 103
Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat,
720; 6 L. Ed., 199; and Beers vs. States, 20
How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the
plaintiff sought to recover damages from the
state for personal injuries received on account of
the negligence of the state officers at the state
fair, a state institution created by the legislature
for the purpose of improving agricultural and
kindred industries; to disseminate information
calculated to educate and benefit the industrial
classes; and to advance by such means the
material interests of the state, being objects
similar to those sought by the public school
system. In passing upon the question of the
state's liability for the negligent acts of its officers
or agents, the court said:
No claim arises against any government
is favor of an individual, by reason of the
misfeasance, laches, or unauthorized
exercise of powers by its officers or
agents. (Citing Gibbons vs. U. S., 8
Wall., 269; Clodfelter vs. State, 86 N. C.,
51, 53; 41 Am. Rep., 440; Chapman vs.
State, 104 Cal., 690; 43 Am. St. Rep.,
158; Green vs. State, 73 Cal., 29; Bourn
vs. Hart, 93 Cal., 321; 27 Am. St. Rep.,
203; Story on Agency, sec. 319.)
As to the scope of legislative enactments
permitting individuals to sue the state where the
cause of action arises out of either fort or
contract, the rule is stated in 36 Cyc., 915, thus:
By consenting to be sued a state simply
waives its immunity from suit. It does not
thereby concede its liability to plaintiff, or
create any cause of action in his favor,
or extend its liability to any cause not
previously recognized. It merely gives a
remedy to enforce a preexisting liability
and submits itself to the jurisdiction of
the court, subject to its right to interpose
any lawful defense.
In Apfelbacher vs. State (152 N. W., 144,
advanced sheets), decided April 16, 1915, the
Act of 1913, which authorized the bringing of this
suit, read:
SECTION 1. Authority is hereby given to
George Apfelbacher, of the town of
Summit, Waukesha County, Wisconsin,
to bring suit in such court or courts and
in such form or forms as he may be
advised for the purpose of settling and
determining all controversies which he
may now have with the State of
Wisconsin, or its duly authorized officers
and agents, relative to the mill property
of said George Apfelbacher, the fish
hatchery of the State of Wisconsin on
the Bark River, and the mill property of
Evan Humphrey at the lower end of
Nagawicka Lake, and relative to the use
of the waters of said Bark River and
526 | PART 1 C O N S T I 1 FULLTEXT
 Nagawicka Lake, all in the county of
Waukesha, Wisconsin.
In determining the scope of this act, the court
said:
Plaintiff claims that by the enactment of
this law the legislature admitted liability
on the part of the state for the acts of its
officers, and that the suit now stands
just as it would stand between private
parties. It is difficult to see how the act
does, or was intended to do, more than
remove the state's immunity from suit. It
simply gives authority to commence suit
for the purpose of settling plaintiff's
controversies with the estate. Nowhere
in the act is there a whisper or
suggestion that the court or courts in the
disposition of the suit shall depart from
well established principles of law, or that
the amount of damages is the only
question to be settled. The act opened
the door of the court to the plaintiff. It did
not pass upon the question of liability,
but left the suit just where it would be in
the absence of the state's immunity from
suit. If the Legislature had intended to
change the rule that obtained in this
state so long and to declare liability on
the part of the state, it would not have
left so important a matter to mere
inference, but would have done so in
express terms. (Murdock Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.E.,
854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the
provisions of the Act of 1893, relied upon and
considered, are as follows:
All persons who have, or shall hereafter
have, claims on contract or for
negligence against the state not allowed
by the state board of examiners, are
hereby authorized, on the terms and
conditions herein contained, to bring suit
thereon against the state in any of the
courts of this state of competent
jurisdiction, and prosecute the same to
final judgment. The rules of practice in
civil cases shall apply to such suits,
except as herein otherwise provided.
And the court said:
This statute has been considered by this
court in at least two cases, arising under
different facts, and in both it was held
that said statute did not create any
liability or cause of action against the
state where none existed before, but
merely gave an additional remedy to
enforce such liability as would have
existed if the statute had not been
enacted. (Chapman vs. State, 104 Cal.,
690; 43 Am. St. Rep., 158; Melvin vs.
State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887
gave to the superior court "jurisdiction of all
claims against the commonwealth, whether at
law or in equity," with an exception not
necessary to be here mentioned. In construing
this statute the court, in Murdock Grate Co. vs.
Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose
no intention to create against the state a
new and heretofore unrecognized class
of liabilities, but only an intention to
provide a judicial tribunal where well
recognized existing liabilities can be
adjudicated.
In Sipple vs. State (99 N. Y., 284), where the
board of the canal claims had, by the terms of
the statute of New York, jurisdiction of claims for
damages for injuries in the management of the
canals such as the plaintiff had sustained, Chief
Justice Ruger remarks: "It must be conceded
that the state can be made liable for injuries
arising from the negligence of its agents or
servants, only by force of some positive statute
assuming such liability."
It being quite clear that Act No. 2457 does not
operate to extend the Government's liability to
any cause not previously recognized, we will
now examine the substantive law touching the
defendant's liability for the negligent acts of its
officers, agents, and employees. Paragraph 5 of
article 1903 of the Civil Code reads:
The state is liable in this sense when it
acts through a special agent, but not
when the damage should have been
caused by the official to whom properly
it pertained to do the act performed, in
which case the provisions of the
preceding article shall be applicable.
The supreme court of Spain in defining the
scope of this paragraph said:
That the obligation to indemnify for
damages which a third person causes to
another by his fault or negligence is
based, as is evidenced by the same Law
3, Title 15, Partida 7, on that the person
527 | PART 1 C O N S T I 1 FULLTEXT
obligated, by his own fault or
negligence, takes part in the act or
omission of the third party who caused
the damage. It follows therefrom that the
state, by virtue of such provisions of law,
is not responsible for the damages
suffered by private individuals in
consequence of acts performed by its
employees in the discharge of the
functions pertaining to their office,
because neither fault nor even
negligence can be presumed on the part
of the state in the organization of
branches of public service and in the
appointment of its agents; on the
contrary, we must presuppose all
foresight humanly possible on its part in
order that each branch of service serves
the general weal an that of private
persons interested in its operation.
Between these latter and the state,
therefore, no relations of a private
nature governed by the civil law can
arise except in a case where the state
acts as a judicial person capable of
acquiring rights and contracting
obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16,
book 4, regulates the obligations which
arise out of fault or negligence; and
whereas in the first article thereof. No.
1902, where the general principle is laid
down that where a person who by an act
or omission causes damage to another
through fault or negligence, shall be
obliged to repair the damage so done,
reference is made to acts or omissions
of the persons who directly or indirectly
cause the damage, the following articles
refers to this persons and imposes an
identical obligation upon those who
maintain fixed relations of authority and
superiority over the authors of the
damage, because the law presumes that
in consequence of such relations the evil
caused by their own fault or negligence
is imputable to them. This legal
presumption gives way to proof,
however, because, as held in the last
paragraph of article 1903, responsibility
for acts of third persons ceases when
the persons mentioned in said article
prove that they employed all the
diligence of a good father of a family to
avoid the damage, and among these
persons, called upon to answer in a
direct and not a subsidiary manner, are
found, in addition to the mother or the
father in a proper case, guardians and
owners or directors of an establishment
or enterprise, the state, but not always,
except when it acts through the agency
of a special agent, doubtless because
and only in this case, the fault or
negligence, which is the original basis of
this kind of objections, must be
presumed to lie with the state.
That although in some cases the state
might by virtue of the general principle
set forth in article 1902 respond for all
the damage that is occasioned to private
parties by orders or resolutions which by
fault or negligence are made by
branches of the central administration
acting in the name and representation of
the state itself and as an external
expression of its sovereignty in the
exercise of its executive powers, yet
said article is not applicable in the case
of damages said to have been
occasioned to the petitioners by an
executive official, acting in the exercise
of his powers, in proceedings to enforce
the collections of certain property taxes
owing by the owner of the property
which they hold in sublease.
That the responsibility of the state is
limited by article 1903 to the case
wherein it acts through a special
agent(and a special agent, in the sense
in which these words are employed, is
one who receives a definite and fixed
order or commission, foreign to the
exercise of the duties of his office if he is
a special official) so that in
representation of the state and being
bound to act as an agent thereof, he
executes the trust confided to him. This
concept does not apply to any executive
agent who is an employee of the acting
administration and who on his own
responsibility performs the functions
which are inherent in and naturally
pertain to his office and which are
regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904;
98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article
1903 of the Civil Code and the principle
laid down in a decision, among others,
of the 18th of May, 1904, in a damage
case, the responsibility of the state is
limited to that which it contracts through
a special agent, duly empowered by
a definite order or commission to
perform some act or charged with some
definite purpose which gives rise to the
528 | PART 1 C O N S T I 1 FULLTEXT
 claim, and not where the claim is based
on acts or omissions imputable to a
public official charged with some
administrative or technical office who
can be held to the proper responsibility
in the manner laid down by the law of
civil responsibility. Consequently, the
trial court in not so deciding and in
sentencing the said entity to the
payment of damages, caused by an
official of the second class referred to,
has by erroneous interpretation infringed
the provisions of articles 1902 and 1903
of the Civil Code. (Supreme Court of
Spain, July 30, 1911; 122 Jur. Civ.,
146.)

It is, therefore, evidence that the State (the

Government of the Philippine Islands) is only
liable, according to the above quoted decisions
of the Supreme Court of Spain, for the acts of its
agents, officers and employees when they act as
special agents within the meaning of paragraph
5 of article 1903, supra, and that the chauffeur of
the ambulance of the General Hospital was not
such an agent.

For the foregoing reasons, the judgment

appealed from must be reversed, without costs
in this instance. Whether the Government
intends to make itself legally liable for the
amount of damages above set forth, which the
plaintiff has sustained by reason of the negligent
acts of one of its employees, by legislative
enactment and by appropriating sufficient funds
therefor, we are not called upon to determine.
This matter rests solely with the Legislature and
not with the courts.

Arellano, C. J., Torres, Johnson, and Moreland,

JJ., concur.

529 | PART 1 C O N S T I 1 FULLTEXT

 SECOND DIVISION
G.R. No. 129406 March 6, 2006
REPUBLIC OF THE PHILIPPINES represented
by the PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT (PCGG), Petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION) and
ROBERTO S. BENEDICTO, Respondents.
DECISION
GARCIA, J.:
Before the Court is this petition for certiorari
under Rule 65 of the Rules of Court to nullify and
set aside the March 28, 19951 and March 13,
19972 Resolutions of the Sandiganbayan,
Second Division, in Civil Case No. 0034, insofar
as said resolutions ordered the Presidential
Commission on Good Government (PCGG) to
pay private respondent Roberto S. Benedicto or
his corporations the value of 227 shares of stock
of the Negros Occidental Golf and Country Club,
Inc. (NOGCCI) at P150,000.00 per share,
registered in the name of said private
respondent or his corporations.
The facts:
Civil Case No. 0034 entitled Republic of the
Philippines, plaintiff, v. Roberto S. Benedicto, et
al., defendants, is a complaint for reconveyance,
reversion, accounting, reconstitution and
damages. The case is one of several suits
involving ill-gotten or unexplained wealth that
petitioner Republic, through the PCGG, filed with
the Sandiganbayan against private respondent
Roberto S. Benedicto and others pursuant to
Executive Order (EO) No. 14,3 series of 1986.
Pursuant to its mandate under EO No. 1,4 series
of 1986, the PCGG issued writs placing under
sequestration all business enterprises, entities
and other properties, real and personal, owned
or registered in the name of private respondent
Benedicto, or of corporations in which he
appeared to have controlling or majority interest.
Among the properties thus sequestered and
taken over by PCGG fiscal agents were the 227
shares in NOGCCI owned by private respondent
Benedicto and registered in his name or under
the names of corporations he owned or
controlled.
Following the sequestration process, PCGG
representatives sat as members of the Board of
Directors of NOGCCI, which passed, sometime
in October 1986, a resolution effecting a
corporate policy change. The change consisted
of assessing a monthly membership due
of P150.00 for each NOGCCI share. Prior to this
resolution, an investor purchasing more than
one NOGCCI share was exempt from paying
monthly membership due for the second and
subsequent shares that he/she owned.
Subsequently, on March 29, 1987, the NOGCCI
Board passed another resolution, this time
increasing the monthly membership due
from P150.00 to P250.00 for each share.
As sequestrator of the 227 shares of stock in
question, PCGG did not pay the corresponding
monthly membership due thereon
totaling P2,959,471.00. On account thereof, the
227 sequestered shares were declared
delinquent to be disposed of in an auction sale.
Apprised of the above development and
evidently to prevent the projected auction sale of
the same shares, PCGG filed a complaint for
injunction with the Regional Trial Court (RTC) of
Bacolod City, thereat docketed as Civil Case No.
5348. The complaint, however, was dismissed,
paving the way for the auction sale for the
delinquent 227 shares of stock. On August 5,
1989, an auction sale was conducted.
On November 3, 1990, petitioner Republic and
private respondent Benedicto entered into a
Compromise Agreement in Civil Case No. 0034.
The agreement contained a general release
clause5 whereunder petitioner Republic agreed
and bound itself to lift the sequestration on the
227 NOGCCI shares, among other Benedicto’s
properties, petitioner Republic acknowledging
that it was within private respondent Benedicto’s
capacity to acquire the same shares out of his
income from business and the exercise of his
profession.6 Implied in this undertaking is the
recognition by petitioner Republic that the
subject shares of stock could not have been ill-
gotten.
In a decision dated October 2, 1992, the
Sandiganbayan approved the Compromise
Agreement and accordingly rendered judgment
in accordance with its terms.
In the process of implementing the Compromise
Agreement, either of the parties would, from time
to time, move for a ruling by the Sandiganbayan
on the proper manner of implementing or
interpreting a specific provision therein.
On February 22, 1994, Benedicto filed in Civil
Case No. 0034 a "Motion for Release from
530 | PART 1 C O N S T I 1 FULLTEXT
Sequestration and Return of Sequestered
Shares/Dividends" praying, inter alia, that his
NOGCCI shares of stock be specifically released
from sequestration and returned, delivered or
paid to him as part of the parties’ Compromise
Agreement in that case. In a
Resolution7 promulgated on December 6, 1994,
the Sandiganbayan granted Benedicto’s
aforementioned motion but placed the subject
shares under the custody of its Clerk of Court,
thus:
WHEREFORE, in the light of the foregoing, the
said "Motion for Release From Sequestration
and Return of Sequestered Shares/Dividends" is
hereby GRANTED and it is directed that said
shares/dividends be delivered/placed under the
custody of the Clerk of Court, Sandiganbayan,
Manila subject to this Court’s disposition.
On March 28, 1995, the Sandiganbayan came
out with the herein first assailed
Resolution,8 which clarified its aforementioned
December 6, 1994 Resolution and directed the
immediate implementation thereof by requiring
PCGG, among other things:
(b) To deliver to the Clerk of Court the 227
sequestered shares of [NOGCCI] registered in
the name of nominees of ROBERTO S.
BENEDICTO free from all liens and
encumbrances, or in default thereof, to pay their
value at P150,000.00 per share which can be
deducted from [the Republic’s] cash share in the
Compromise Agreement. [Words in bracket
added] (Emphasis Supplied).
Owing to PCGG’s failure to comply with the
above directive, Benedicto filed in Civil Case No.
0034 a Motion for Compliance dated July 25,
1995, followed by an Ex-Parte Motion for Early
Resolution dated February 12, 1996. Acting
thereon, the Sandiganbayan promulgated yet
another Resolution9 on February 23, 1996,
dispositively reading:
WHEREFORE, finding merit in the instant
motion for early resolution and considering that,
indeed, the PCGG has not shown any justifiable
ground as to why it has not complied with its
obligation as set forth in the Order of December
6, 1994 up to this date and which Order was
issued pursuant to the Compromise Agreement
and has already become final and executory,
accordingly, the Presidential Commission on
Good Government is hereby given a final
extension of fifteen (15) days from receipt hereof
within which to comply with the Order of
December 6, 1994 as stated hereinabove.
On April 1, 1996, PCGG filed a Manifestation
with Motion for Reconsideration,10 praying for the
setting aside of the Resolution of February 23,
1996. On April 11, 1996, private respondent
Benedicto filed a Motion to Enforce Judgment
Levy. Resolving these two motions, the
Sandiganbayan, in its second assailed
Resolution11 dated March 13, 1997, denied that
portion of the PCGG’s Manifestation with Motion
for Reconsideration concerning the subject 227
NOGCCI shares and granted Benedicto’s Motion
to Enforce Judgment Levy.
Hence, the Republic’s present recourse on the
sole issue of whether or not the public
respondent Sandiganbayan, Second Division,
gravely abused its discretion in holding that the
PCGG is at fault for not paying the membership
dues on the 227 sequestered NOGCCI shares of
stock, a failing which eventually led to the
foreclosure sale thereof.
The petition lacks merit.
To begin with, PCGG itself does not dispute its
being considered as a receiver insofar as the
sequestered 227 NOGCCI shares of stock are
concerned.12 PCGG also acknowledges that as
such receiver, one of its functions is to pay
outstanding debts pertaining to the sequestered
entity or property,13 in this case the 227 NOGCCI
shares in question. It contends, however, that
membership dues owing to a golf club cannot be
considered as an outstanding debt for which
PCGG, as receiver, must pay. It also claims to
have exercised due diligence to prevent the loss
through delinquency sale of the subject NOGCCI
shares, specifically inviting attention to the
injunctive suit, i.e., Civil Case No. 5348, it filed
before the RTC of Bacolod City to enjoin the
foreclosure sale of the shares.
The filing of the injunction complaint adverted to,
without more, cannot plausibly tilt the balance in
favor of PCGG. To the mind of the Court, such
filing is a case of acting too little and too late. It
cannot be over-emphasized that it behooved the
PCGG’s fiscal agents to preserve, like a
responsible father of the family, the value of the
shares of stock under their administration. But
far from acting as such father, what the fiscal
agents did under the premises was to allow the
element of delinquency to set in before acting by
embarking on a tedious process of going to court
after the auction sale had been announced and
scheduled.
The PCGG’s posture that to the owner of the
sequestered shares rests the burden of paying
the membership dues is untenable. For one, it
531 | PART 1 C O N S T I 1 FULLTEXT
lost sight of the reality that such dues are
basically obligations attached to the shares,
which, in the final analysis, shall be made liable,
thru delinquency sale in case of default in
payment of the dues. For another, the PCGG as
sequestrator-receiver of such shares is, as
stressed earlier, duty bound to preserve the
value of such shares. Needless to state,
adopting timely measures to obviate the loss of
those shares forms part of such duty and due
diligence.
The Sandiganbayan, to be sure, cannot
plausibly be faulted for finding the PCGG liable
for the loss of the 227 NOGCCI shares. There
can be no quibbling, as indeed the graft court so
declared in its assailed and related resolutions
respecting the NOGCCI shares of stock, that
PCGG’s fiscal agents, while sitting in the
NOGCCI Board of Directors agreed to the
amendment of the rule pertaining to membership
dues. Hence, it is not amiss to state, as did the
Sandiganbayan, that the PCGG-designated
fiscal agents, no less, had a direct hand in the
loss of the sequestered shares through
delinquency and their eventual sale through
public auction. While perhaps anti-climactic to so
mention it at this stage, the unfortunate loss of
the shares ought not to have come to pass had
those fiscal agents prudently not agreed to the
passage of the NOGCCI board resolutions
charging membership dues on shares without
playing representatives.
Given the circumstances leading to the auction
sale of the subject NOGCCI shares, PCGG’s
lament about public respondent Sandiganbayan
having erred or, worse still, having gravely
abused its discretion in its determination as to
who is at fault for the loss of the shares in
question can hardly be given cogency.
For sure, even if the Sandiganbayan were wrong
in its findings, which does not seem to be in this
case, it is a well-settled rule of jurisprudence that
certiorari will issue only to correct errors of
jurisdiction, not errors of judgment. Corollarily,
errors of procedure or mistakes in the court’s
findings and conclusions are beyond the
corrective hand of certiorari.14 The extraordinary
writ of certiorari may be availed only upon a
showing, in the minimum, that the respondent
tribunal 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.15
The term "grave abuse of discretion" connotes
capricious and whimsical exercise of judgment
as is equivalent to excess, or a lack of
jurisdiction.16 The abuse must be so patent and
gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty
enjoined by law, 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 hostility.17 Sadly, this is completely
absent in the present case. For, at bottom, the
assailed resolutions of the Sandiganbayan did
no more than to direct PCGG to comply with its
part of the bargain under the compromise
agreement it freely entered into with private
respondent Benedicto. Simply put, the assailed
resolutions of the Sandiganbayan have firm
basis in fact and in law.
Lest it be overlooked, the issue of liability for the
shares in question had, as both public and
private respondents asserted, long become final
and executory. Petitioner’s narration of facts in
its present petition is even misleading as it
conveniently fails to make reference to two (2)
resolutions issued by the Sandiganbayan. We
refer to that court’s resolutions of December 6,
199418 and February 23, 199619 as well as
several intervening pleadings which served as
basis for the decisions reached therein. As it
were, the present petition questions only and
focuses on the March 28, 199520 and March 13,
199721 resolutions, which merely reiterated and
clarified the graft court’s underlying resolution of
December 6, 1994. And to place matters in the
proper perspective, PCGG’s failure to comply
with the December 6, 1994 resolution prompted
the issuance of the clarificatory and/or reiteratory
resolutions aforementioned.
In a last-ditch attempt to escape liability,
petitioner Republic, through the PCGG, invokes
state immunity from suit.22As argued, the order
for it to pay the value of the delinquent shares
would fix monetary liability on a government
agency, thus necessitating the appropriation of
public funds to satisfy the judgment claim.23 But,
as private respondent Benedicto correctly
countered, the PCGG fails to take stock of one
of the exceptions to the state immunity principle,
i.e., when the government itself is the suitor, as
in Civil Case No. 0034. Where, as here, the
State itself is no less the plaintiff in the main
case, immunity from suit cannot be effectively
invoked.24 For, as jurisprudence teaches, when
the State, through its duly authorized officers,
takes the initiative in a suit against a private
party, it thereby descends to the level of a
private individual and thus opens itself to
whatever counterclaims or defenses the latter
may have against it.25 Petitioner Republic’s act of
filing its complaint in Civil Case No. 0034
constitutes a waiver of its immunity from suit.
Being itself the plaintiff in that case, petitioner
Republic cannot set up its immunity against
532 | PART 1 C O N S T I 1 FULLTEXT
private respondent Benedicto’s prayers in the
same case.
In fact, by entering into a Compromise
Agreement with private respondent Benedicto,
petitioner Republic thereby stripped itself of its
immunity from suit and placed itself in the same
level of its adversary. When the State enters into
contract, through its officers or agents, in
furtherance of a legitimate aim and purpose and
pursuant to constitutional legislative authority,
whereby mutual or reciprocal benefits accrue
and rights and obligations arise therefrom, the
State may be sued even without its express
consent, precisely because by entering into a
contract the sovereign descends to the level of
the citizen. Its consent to be sued is implied from
the very act of entering into such
contract,26 breach of which on its part gives the
corresponding right to the other party to the
agreement.
Finally, it is apropos to stress that the
Compromise Agreement in Civil Case No. 0034
envisaged the immediate recovery of alleged ill-
gotten wealth without further litigation by the
government, and buying peace on the part of the
aging Benedicto.27 Sadly, that stated objective
has come to naught as not only had the litigation
continued to ensue, but, worse, private
respondent Benedicto passed away on May 15,
2000,28 with the trial of Civil Case No. 0034 still
in swing, so much so that the late Benedicto had
to be substituted by the administratrix of his
estate.29
WHEREFORE, the instant petition is hereby
DISMISSED.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
RENATO C.
ANGELINA SANDOVAL-
CORONA
GUTIERREZ
Asscociate
Associate Justice
Justice
ADOLFO S. AZCUNA
Associate Justice
ATTESTATION
I attest that the conclusions in the above
decision were reached in consultation before the
case was assigned to the writer of the opinion of
the Court’s Division.
REYNATO S .PUNO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Article VIII, Section 13 of the
Constitution, and the Division Chairman's
Attestation, it is hereby certified that the
conclusions in the above decision were reached
in consultation before the case was assigned to
the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Penned by Associate Justice Romeo
M. Escareal, with Associate Justices
Minita Chico-Nazario (now a member of
this Court) and Roberto M. Lagman,
concurring; Rollo, pp. 14-27.
2
Rollo, pp. 28-43.
3
Issued by then Pres. Corazon C.
Aquino investing the Sandiganbayan
exclusive and original jurisdiction over
cases involving the ill-gotten wealth of
former President Ferdinand E. Marcos,
members of his immediate family, close
relatives, subordinates, close and/or
business associates, dummies, agents
and nominees.
4
Creating the PCGG to assist the
President in the recovery of vast
government resources allegedly
amassed by then former President
Marcos, his immediate family, relatives
and close associates and defining its
powers.
5
Par. II (a).
6
Petition, Rollo, p. 6.
7
Rollo, pp. 127-132, Annex 6 of
Comment.
533 | PART 1 C O N S T I 1 FULLTEXT
8
Rollo, pp. 14-27, Annex "A" of the
Petition.

9
Rollo, pp. 138-139, Annex 9 of
Comment.

Rollo, pp. 44-46, Annex "C" of the

10

Petition.

Rollo, pp. 28-43, Annex "B" of the

11

Petition.

12
Petition, Rollo, p. 7.

Id. at pp. 7-8, Petition, citing Bataan

13

Shipyard & Engineering Co. v. PCGG,

150 SCRA 181 (1987).

14
Lee v. People, 393 SCRA 397 (2002).

Camacho v. Coresis, Jr., 387 SCRA

15

628 (2002).

16
Litton Mills, Inc. v. Galleon Trader,
Inc., 163 SCRA 489 (1988).

Duero v. Court of Appeals, 373 SCRA

17

11 (2002).

18
See Note #7, supra.

19
See Note #9, supra.

20
See Note # 1, supra.

21
See Note #2, supra.

Reply, Rollo, p. 160; and

22

Memorandum, Rollo, pp. 260-261.

Id., citing Garcia v. Chief of Staff, 16

23

SCRA 120 (1966).

24
Rejoinder, Rollo, pp. 169-170.

Froilan v. Pan Oriental Shipping Co.,

25

95 Phil. 905, 912 (1954).

26
Santos v. Santos, 92 Phil. 281, 284
(1952).

March 28, 1995 Resolution of the

27

Sandiganbayan; Rollo, p. 20.

28
Notice of death, Rollo, pp. 210-212.

29
Rollo, p. 228.
534 | PART 1 C O N S T I 1 FULLTEXT
 SECOND DIVISION
G.R. No. 131544. March 16, 2001
EPG CONSTRUCTION CO., CIPER
ELECTRICAL & ENGINEERING, SEPTA
CONSTRUCTION CO., PHIL. PLUMBING
CO., HOME CONSTRUCTION INC.,
WORLD BUILDERS CO., GLASS WORLD
INC., PERFORMANCE BUILDERS DEVT.
CO., DE LEON-ARANETA CONST. CO.,
J.D. MACAPAGAL CONST. CO., All
represented by their Atty. IN FACT,
MARCELO D, FORONDA, petitioners,
vs. HON. GREGORIO R. VIGILAR, In
His Capacity as Secretary of Public
Works and Highways, respondent.
DECISION
BUENA, J.:
Sought to be reversed in the instant
Petition for Certiorari is the Decision,
dated 07 November 1997, of the Regional
Trial Court of Quezon City, Branch 226, in
Civil Case No. Q-96-29243, 1 dismissing
the Petition for Mandamus filed by herein
petitioners against herein respondent Hon.
Gregorio Vigilar, in his capacity as
Secretary of the Department of Public
Works and Highways (DPWH).
The tapestry of facts unfurls.
In 1983, the Ministry of Human
Settlement, through the BLISS
Development Corporation, initiated a
housing project on a government property
along the east bank of the Manggahan
Floodway in Pasig City. For this purpose,
the Ministry of Human Settlement entered
into a Memorandum of Agreement (MOA)
with the Ministry of Public Works and
Highways, 2 where the latter undertook to
develop the housing site and construct
thereon 145 housing units.
By virtue of the MOA, the Ministry of
Public Works and Highways forged
individual contracts with herein petitioners
EPG Construction Co., Ciper Electrical and
Engineering, Septa Construction Co., Phil.
Plumbing Co., Home Construction Inc.,
World Builders Inc., Glass World Inc.,
Performance Builders Development Co.
and De Leon Araneta Construction Co., for
the construction of the housing units.
Under the contracts, the scope of
construction and funding therefor covered
only around 2/3 of each housing
unit. 3 After complying with the terms of
said contracts, and by reason of the verbal
request and assurance of then DPWH
Undersecretary Aber Canlas that
additional funds would be available and
forthcoming, petitioners agreed to
undertake and perform additional
constructions 4 for the completion of the
housing units, despite the absence of
appropriations and written contracts to
cover subsequent expenses for the
additional constructions.
Petitioners then received payment for the
construction work duly covered by the
individual written contracts, thereby
leaving an unpaid balance of
P5,918,315.63, 5 which amount
represents the expenses for the additional
constructions for the completion of the
existing housing units. On 14 November
1988, petitioners sent a demand letter to
the DPWH Secretary and submitted that
their claim for payment was favorably
recommended by DPWH Assistant
Secretary for Legal Services Dominador
Madamba, who recognized the existence
ofimplied contracts covering the
additional constructions. Notwithstanding,
DPWH Assistant Secretary Madamba
opined that payment of petitioners money
claims should be based onquantum
meruit and should be forwarded to the
Commission on Audit (COA) for its due
consideration and approval. The money
claims were then referred to COA which
returned the same to the DPWH Auditor
for auditorial action. On the basis of the
Inspection Report of the Auditors
Technical Staff, the DPWH Auditor
interposed no objection to the payment of
the money claims subject to whatever
action the COA may adopt.
In a Second Indorsement dated 27 July
1992, the COA returned the documents to
the DPWH, stating that funds should first
be made available before COA could pass
upon and act on the money claims. In a
Memorandum dated 30 July 1992, then
DPWH Secretary Jose De Jesus requested
the Secretary of Budget and Management
to release public funds for the payment of
petitioners money claims, stating that the
535 | PART 1 C O N S T I 1 FULLTEXT
amount is urgently needed in order to
settle once and for all this (sic)
outstanding obligations of the
government. In a Letter of the
Undersecretary of Budget and
Management dated 20 December 1994,
the amount of P5,819,316.00 was then
released for the payment of petitioners
money claims, under Advise of Allotment
No. A4-1303-04-41-303.
In an Indorsement dated 27 December
1995, the COA referred anew the money
claims to the DPWH pursuant to COA
Circular 95-006, thus:
Respectfully returned thru the Auditor to
the Honorable Secretary, Department of
Public Works and Highways, Port Area,
Manila, the above-captioned subject (Re:
Claim of Ten (10) contractors for payment
of Work accomplishments on the
construction of the COGEO II Housing
Project, Pasig, Metro Manila) and
reiterating the policy of this office as
embodied in COA Circular No. 95-006
dated May 18, 1995 totally lifting its pre-
audit activities on all financial transactions
of the agencies of the government
involving implementation/prosecution of
projects and/or payment of claims without
exception so as to vest on agency heads
the prerogative to exercise fiscal
responsibility thereon.
The audit of the transaction shall be done
after payment.
In a letter dated 26 August 1996,
respondent DPWH Secretary Gregorio
Vigilar denied the subject money claims
prompting herein petitioners to file before
the Regional Trial Court of Quezon City,
Branch 226, a Petition for Mandamus
praying that herein respondent be
ordered:
1) To pay petitioners the total of
P5,819,316.00;
2) To pay petitioners moral and exemplary
damages in the amount to be fixed by the
Court and sum of P500,000.00 as
attorneys fees.
On 18 February 1997, the lower court
conducted a pre-trial conference where
the parties appeared and filed their
respective pre-trial briefs. Further,
respondent submitted a Memorandum to
which petitioners filed a Rejoinder.
On 07 November 1997, the lower court
denied the Petition for Mandamus, in a
Decision which disposed as follows:
WHEREFORE, in view of all the foregoing,
the instant Petition for Mandamus is
dismissed. The order of September 24,
1997, submitting the Manifestation and
Motion for Resolution, is hereby
withdrawn.
SO ORDERED.
Hence, this petition where the core issue
for resolution focuses on the right of
petitioners-contractors to compensation
for a public works housing project.
In the case before us, respondent, citing
among others Sections 46 6 and
47, 7 Chapter 7, Sub-Title B, Title I, Book
V of the Administrative Code of 1987 (E.O
292), posits that the existence of
appropriations and availability of funds as
certified to and verified by the proper
accounting officials are conditions sine qua
non for the execution of government
contracts. 8Respondent harps on the fact
that the additional work was pursued
through the verbal request of then DPWH
Undersecretary Aber P. Canlas, despite
the absence of the corresponding
supplemental contracts and appropriate
funding. 9 According to
respondent, sans showing of certificate of
availability of funds, the implied contracts
are considered fatally defective and
considered inexistent and void ab initio.
Respondent concludes that inasmuch as
the additional work done was pursued in
violation of the mandatory provisions of
the laws concerning contracts involving
expenditure of public funds and in excess
of the public officials contracting authority,
the same is not binding on the
government and impose no liability
therefor. 10
crä läwvirt ualib rä ry
Although this Court agrees with
respondents postulation that the implied
contracts, which covered the additional
constructions, are void, in view of
536 | PART 1 C O N S T I 1 FULLTEXT
violation of applicable laws, auditing rules
and lack of legal requirements, 11 we
nonetheless find the instant petition laden
with merit and uphold, in the interest of
substantial justice, petitioners-contractors
right to be compensated for the
"additional constructions" on the public
works housing project, applying
the principle of quantum meruit .
Interestingly, this case is not of first
impression. In Eslao vs. Commission on
Audit, 12this Court likewise allowed
recovery by the contractor on the basis
of quantum meruit, following our
pronouncement in Royal Trust
Construction vs. Commission on
Audi t, 13thus:
In Royal Trust Construction vs. COA, a
case involving the widening and
deepening of the Betis River in Pampanga
at the urgent request of the local
officials and with the knowledge and
consent of the Ministry of Public
Works, even without a written
contract and the covering
appropriation, the project was
undertaken to prevent the overflowing of
the neighboring areas and to irrigate the
adjacent farmlands. The contractor sought
compensation for the completed portion in
the sum of over P1 million. While
the payment was favorably
recommended by the Ministry of
Public Works, it was denied by the
respondent COA on the ground of violation
of mandatory legal provisions as the
existence of corresponding appropriations
covering the contract cost. Under COA
Res. No. 36-58 dated November 15, 1986,
its existing policy is to allow recovery from
covering contracts on the basis of
quantum meruit if there is delay in the
accomplishment of the required certificate
of availability of funds to support a
contract. (Emphasis ours)
In the Royal Construction case, this
Court, applying the principle of quantum
meruit in allowing recovery by the
contractor, elucidated:
The work done by it (the contractor) was
impliedly authorized and later expressly
acknowledged by the Ministry of Public
Works, which has twice recommended
favorable action on the petitioners request
for payment. Despite the admitted
absence of a specific covering
appropriation as required under COA
Resolution No. 36-58, the petitioner
may nevertheless be compensated for
the services rendered by
it, concededly for the public benefit,
from the general fund allotted by law to
the Betis River project. Substantial
compliance with the said resolution, in
view of the circumstances of this case,
should suffice. The Court also feels that
the remedy suggested by the
respondent, to wit, the filing of a
complaint in court for recovery of the
compensation claimed, would entail
additional expense, inconvenience
and delay which in fairness should be
imposed on the petitioner.
Accordingly, in the interest of substantial
justice and equity, the respondent
Commission on Audit is DIRECTED to
determine on a quantum meruit basis the
total compensation due to the petitioner
for the services rendered by it in the
channel improvement of the Betis River in
Pampanga and to allow the payment
thereof immediately upon completion of
the said determination. (Emphasis ours)
Similarly, this Court applied the doctrine
of quantum meruit in Melchor vs.
Commission on Audit 14 and explained
that where payment is based on quantum
meruit, the amount of recovery would only
be the reasonable value of the thing or
services rendered regardless of any
agreement as to value. 15 c räläwvi rtua lib räry
Notably, the peculiar circumstances
present in the instant case buttress
petitioners claim for compensation for the
additional constructions, despite the
illegality and void nature of the implied
contracts forged between the DPWH and
petitioners-contractors. On this matter, it
bears stressing that the illegality of the
subject contracts proceeds from an
express declaration or prohibition by
law, 16 and not from any intrinsic illegality.
Stated differently, the subject contracts
are not illegal per se.
Of equal significance are circumstances
attendant and peculiar in this case which
537 | PART 1 C O N S T I 1 FULLTEXT
necessitate allowance of petitioners
money claimson the basis of quantum
meruit for work accomplished on the
government housing project.
To begin with, petitioners-contractors
assented and agreed to undertake
additional constructions for the completion
of the housing units, believing in good
faith and in the interest of the government
and, in effect, the public in general, that
appropriations to cover the additional
constructions and completion of the public
works housing project would be available
and forthcoming. On this particular score,
the records reveal that the verbal request
and assurance of then DPWH
Undersecretary Canlas led petitioners-
contractors to undertake the completion
of the government housing project,
despite the absence of covering
appropriations, written contracts, and
certification of availability of funds, as
mandated by law and pertinent auditing
rules and issuances. To put it differently,
the implied contracts, declared void in this
case, covered only the completion and
final phase of construction of the
housing units, which structures,
concededly, were already existing, albeit
not yet finished in their entirety at the
time the implied contracts were entered
into between the government and the
contractors.
Further, petitioners-contractors sent to
the DPWH Secretary a demand letter
pressing for their money claims, on the
strength of a favorable
recommendation from the DPWH
Assistant Secretary for Legal Affairs to the
effect that implied contracts existed and
that the money claims had ample basis
applying the principle of quantum
meruit. Moreover, as can be gleaned
from the records, even the DPWH Auditor
interposed no objection to the payment of
the money claims, subject to whatever
action the COA may adopt.
Beyond this, the sum of P5,819,316.00
representing the amount of petitioners
money claims, had already been released
by the Department of Budget and
Management (DBM), under Advise of
Allotment No. A4-1303-04-41-303.
Equally important is the glaring fact that
the construction of the housing units had
already been completed by petitioners-
contractors and the subject housing units
had been, since their completion, under
the control and disposition of the
government pursuant to its public works
housing project.
To our mind, it would be the apex of
injustice and highly inequitable for us to
defeat petitioners-contractors right to be
duly compensated for actual work
performed and services rendered, where
both the government and the public have,
for years, received and accepted benefits
from said housing project and reaped the
fruits of petitioners-contractors honest toil
and labor.
Incidentally, respondent likewise argues
that the State may not be sued in the
instant case, invoking the constitutional
doctrine of Non-suability of the
State, 17 otherwise known as the Royal
Prerogative of Dishonesty .
Respondents argument is misplaced
inasmuch as the Principle of State
Immunity finds no application in the case
before us.
Under these circumstances, respondent
may not validly invoke the Royal
Prerogative of Dishonesty and
conveniently hide under the States cloak
of invincibility against suit,considering that
this principle yields to certain settled
exceptions. True enough, the rule, in any
case, is not absolute for it does not say
that the state may not be sued under any
circumstance. 18
c räläwvirtual ibrä ry
Thus, in Amigable vs. Cuenca, 19 this
Court, in effect, shred the protective
shroud which shields the State from suit,
reiterating our decree in the landmark
case of Ministerio vs. CFI of
Cebu 20 that the doctrine of governmental
immunity from suit cannot serve as an
instrument for perpetrating an injustice on
a citizen. It is just as important, if not
more so, that there be fidelity to legal
norms on the part of officialdom if the rule
of law were to be maintained. 21
c räläwvi rtual ibrä ry
Although
the Amigable and Ministerio cases
generously tackled the issue of the States
538 | PART 1 C O N S T I 1 FULLTEXT

immunity from suit vis a vis the payment
of just compensation for expropriated
property, this Court nonetheless finds the
doctrine enunciated in the aforementioned
cases applicable to the instant
controversy, considering that the ends of
justice would be subverted if we were to
uphold, in this particular instance, the
States immunity from suit.
To be sure, this Court as the staunch
guardian of the citizens rights and welfare
cannot sanction an injustice so patent on
its face, and allow itself to be an
instrument in the perpetration thereof.
Justice and equity sternly demand that the
States cloak of invincibility against suit be
shred in this particular instance, and that
petitionerscontractors be duly
compensated on the basis of quantum
meruit for construction done on the
public works housing project.
IN VIEW WHEREOF , the instant petition
is GRANTED. The assailed decision of the
Regional Trial Court dated 07 November
1997 is REVERSED AND SET ASIDE.
ACCORDINGLY, the Commission on Audit
is hereby directed to determine and
ascertain with dispatch, on a quantum
meruit basis, the total compensation due
to petitioners-contractors for the
additional constructions on the housing
project and to allow payment thereof upon
the completion of said determination. No
costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza,
Quisumbing, and De Leon, Jr., JJ.,
concur.
Endnotes:
1
Rollo, pp. 14-20.
2
Now Department of Public Works and Highways.
3
Rollo, p. 104.
4
Rollo, p. 188.
5
Rollo, p. 14.
6
Section 46. Appropriation Before Entering into Contract.
(1) No contract involving the expenditure of public funds shall be entered into unless there is
an appropriation therefor, the unexpended balance of which, free of other obligations, is
sufficient to cover the proposed expenditure; X X X
7
Section 47. Certificate Showing Appropriation to Meet Contract.
Except in the case of a contract for personal service, for supplies for current consumption or to
be carried in stock not exceeding the estimated consumption for three (3) months, or banking
transactions of government-owned or controlled banks, no contract involving the expenditure
of public funds by any government agency shall be entered into or authorized unless the
proper accounting official of the agency concerned shall have certified to the officer entering
into the obligation that funds have been duly appropriated for the purpose and that the
amount necessary to cover the proposed contract for the current calendar year is available for
expenditure on account thereof, subject to verification by the auditor concerned. The
certificate signed by the proper accounting official and the auditor who verified it, shall be
attached to and become an integral part of the proposed contract, and the sum so certified
shall not thereafter be available for expenditure for any other purpose until the obligation of
the government agency concerned under the contract is fully extinguished.
8
Rollo p. 94.
9
Ibid.
10
Ibid.
11
Section 48, Chapter 7, Sub-Title B, Title I, Book V, Executive Order 292, otherwise
known as The Administrative Code of 1987, provides: Any contract entered into contrary
to the requirements of the two (2) immediately preceding sections shall be void, and the
officer or officers entering into the contract shall be liable to the Government or other
contracting party for any consequent damage to the same extent as if the transaction had
been wholly between private parties.
12
195 SCRA 730 [1991].
13
G.R. No. 84202, November 23, 1988 (Resolution of the Supreme Court En Banc).
14
200 SCRA 705 [1991].
15
Tantuico, State Audit Code of the Philippines Annotated, 471 [1982], cited in Melchor vs.
COA, Ibid.
16
Section 48, Chapter 7, Sub-Title B, Title 1, Book V, E.O. 292; Article 1409, par. (7), Civil
Code.
17
Section 3, Article XVI, 1987 Constitution provides: The State may not be sued without
its consent.; Section 10, Book I, Chapter 3, E.O. 292, provides: Non-suability of the
State.- No suit shall lie against the state except with its consent as provided by law.
18
Department of Agriculture v. NLRC, 227 SCRA 693 [1993].
19
43 SCRA 360; See also De los Santos v. Intermediate Appellate Court, 223 SCRA 11 [1993].
20
40 SCRA 464 [1971].
21
Ibid.
539 | PART 1 C O N S T I 1 FULLTEXT
 SECOND DIVISION
G.R. No. 161758 June 8, 2007
DEPARTMENT OF EDUCATION, DIVISION OF
ALBAY represented by its SCHOOL’S
Division Superintendent,petitioner,
vs.
CELSO OÑATE, respondent.
DECISION
VELASCO, JR., J.:
A little neglect may lead to great prejudice.
The Case
This is a Petition for Review on Certiorari1 under
Rule 45 seeking to reverse and set aside the
January 14, 2004 Decision2 of the Court of
Appeals (CA) in CA-G.R. CV No. 60659, which
affirmed the November 3, 1997 Decision3of the
Legaspi City Regional Trial Court (RTC), Branch
I, declaring as null and void the December 21,
1998 Deed of Donation4 executed by the
Municipality of Daraga, Albay in favor of
petitioner, and directing the latter to return to
respondent Celso Oñate the possession of the
portion of land occupied by the school site of the
Daraga North Central Elementary School.
The Facts
Spouses Claro Oñate and Gregoria Los Baños
owned Lot No. 6849 (disputed lot) with an area
of around 27,907 square meters registered
under the Torrens System of land registration
under Original Certificate of Title (OCT) No.
2563. Claro Oñate had three children, namely:
Antonio, Rafael, and Francisco, all surnamed
Oñate. Respondent Celso Oñate is the grandson
of Claro Oñate, being the son of Francisco
Oñate.
In 1940, Bagumbayan Elementary School of
Daraga was constructed on a portion of the
disputed lot. The school was eventually renamed
Daraga North Central Elementary School. The
Municipality of Daraga leveled the area while
petitioner Department of Education Culture and
Sports (DECS; now Department of Education
[DepEd]) developed and built various school
buildings and facilities on the disputed lot.
Sometime in 1991, respondent filed a
reconstitution proceeding of OCT No. 2563
which was granted by the Legaspi City RTC,
Branch V after due notice, publication, and
hearing. Consequently, OCT No. RO-
189715 was issued in the name of spouses Claro
Oñate and Gregoria Los Baños.
On August 26, 1991, a Deed of Extrajudicial
Settlement of Estate and Cession was executed
by respondent and his three (3) sisters, namely:
Melba O. Napil, Cielo O. Lardizabal, and Maria
Visia O. Maldo, who waived their successional
rights in favor of respondent Celso Oñate.
Asserting that the disputed lot was inherited by
his father, Francisco Oñate, from the latter’s
father, Claro Oñate, by virtue of a prior partition
among the three (3) sons of Claro Oñate and
Gregoria Los Baños, respondent in turn claimed
ownership of said lot through the deed of
extrajudicial settlement.
Meanwhile, the issue of whether respondent’s
father, Francisco Oñate, truly acquired the
disputed lot through a prior partition among
Claro Oñate’s three (3) children had been
passed upon in another case, Civil Case No.
8724 for Partition, Reconveyance and Damages
filed by the heirs of Rafael Oñate before the
Legaspi City RTC, Branch IX.6In said case,
respondent Celso Oñate, the defendant,
prevailed and the case was dismissed by the
trial court.
Thereafter, respondent caused Lot No. 6849 to
be subdivided into five (5) lots, all under his
name, except Lot No. 6849-B which is under the
name of Mariano M. Lim. On October 26, 1992,
the subdivided lots were issued Transfer
Certificate of Titles (TCTs): (1) Lot No. 6849-A
(13,072 square meters) under TCT No. T-
83946;7 (2) Lot No. 6849-B (3,100 square
meters) under TCT No. T-84049;8 (3) Lot No.
6849-C (10,000 square meters) under TCT No.
T-83948;9 (4) Lot No. 6849-D (1,127 square
meters) under TCT No. T-83949;10 and (5) Lot
No. 6849-E (608 square meters) under TCT No.
T-83950.11
On December 15, 1992, through his counsel,
respondent sent a letter to petitioner apprising it
about the facts and circumstances affecting the
elementary school and its occupancy of Lot No.
6849-A with an area of 13,072 square meters.
Respondent proposed to petitioner DECS that it
purchase Lot No. 6849-A at the Fair Market
Value (FMV) of PhP 400 per square meter and
also requested for reasonable rentals from
1960.12 The records show that then DECS
Director IV Jovencio Revil subsequently referred
the matter to the DECS Division Superintendent
Rizalina D. Saquido for investigation.13
540 | PART 1 C O N S T I 1 FULLTEXT
On February 24, 1993, through his counsel,
respondent likewise wrote to Engr. Orlando
Roces, District Engineer, Albay Engineering
District about the on-going construction projects
in the school.14 Engr. Roces then informed
respondent’s counsel that petitioner DECS is the
owner of the school site having acquired the
disputed lot by virtue of a Deed of Donation
executed by the Municipality of Daraga, Albay in
favor of petitioner.15
Consequently, on March 18, 1993, respondent
instituted a Complaint16 for Annulment of
Donation and/or Quieting of Title with Recovery
of Possession of Lot No. 6849 located at Barrio
Bagumbayan, Daraga, Albay before the Legaspi
City RTC, docketed as Civil Case No. 8715,
against petitioner DECS, Division of Albay,
represented by the Division Superintendent of
Schools, Mrs. Rizalina D. Saquido; and the
Municipality of Daraga, Albay, represented by
the Municipal Mayor, Honorable Cicero
Triunfante.
In its April 28, 1993 Answer,17 the Municipality of
Daraga, Albay, through Mayor Cicero Triunfante,
denied respondent’s ownership of the disputed
lot as it alleged that sometime in 1940, the
Municipality bought said lot from Claro Oñate,
respondent’s grandfather, and since then it had
continually occupied said lot openly and publicly
in the concept of an owner until 1988 when the
Municipality donated the school site to petitioner
DECS; thus asserting that it could also claim
ownership also through adverse possession.
Moreover, it claimed that the disputed lot had
been declared in the name of defendant
municipality in the Municipal Assessor’s Office
under Tax Declaration No. 31954 from 1940 until
1988 for purposes of exemption from real estate
taxes. Further, defendant Municipality contended
that respondent was guilty of laches and was
estopped from assailing ownership over the
disputed lot.
Similarly, petitioner’s April 29, 1993
Answer18 reiterated in essence the defenses
raised by the Municipality of Daraga, Albay and
further contended that respondent had no cause
of action because it acquired ownership over the
disputed lot by virtue of a Deed of Donation
executed on December 21, 1988 in its favor; and
that respondent’s claim was vague as it was
derived from a void Deed of Extrajudicial
Settlement of Estate and Cession disposing of
the disputed lot which was already sold to the
Municipality of Daraga, Albay in 1940. Petitioner
likewise assailed the issuance of a reconstituted
OCT over Lot 6849 when the lower court
granted respondent’s petition for reconstitution
without notifying petitioner.
During the ensuing trial where both parties
presented documentary and testimonial
evidence, respondent testified that he came to
know of the disputed lot in 1973 when he was 23
years old; that he took possession of the said lot
in the same year; that he came to know that the
elementary school occupied a portion of the said
lot only in 1991; and that it was only in 1992 that
he came to know of the Deed of Donation
executed by the Municipality of Daraga,
Albay.19 Also, Felicito Armenta, a tenant
cultivating a portion of disputed Lot 6849,
testified that respondent indeed owned said lot
and the share of the crops cultivated were paid
to respondent.20
However, after respondent testified, defendants
in said case filed a Joint Motion to Dismiss21 on
the ground that respondent’s suit was against
the State which was prohibited without the
latter’s consent. Respondent countered with his
Opposition to Joint Motion to
Dismiss.22 Subsequently, the trial court denied
the Joint Motion to Dismiss, ruling that the State
had given implied consent by entering into a
contract.23
1aw phi1
Aside from the reconstituted OCT No. RO-
18971, respondent presented the TCTs covering
the five (5) portions of the partitioned Lot 6849,
Tax Declaration No. 04-006-0068124 issued for
said lot, and the April 20, 1992
Certification25 from the Office of the Treasurer of
the Municipality of Daraga, Albay attesting to
respondent’s payment of realty taxes for Lot
6849 from 1980 to 1990.
After respondent rested his case, the defense
presented and marked their documentary
exhibits of Tax Declaration No. 30235 issued in
the name of the late Claro Oñate, which was
cancelled in 1938; Tax Declaration
31954,26 which cancelled Tax Declaration No.
30235, in the name of Municipality of Daraga
with the annotation of Ex-Officio Deputy
Assessor Natalio Grageda attesting to the
purchase by the Municipality under Municipal
Voucher No. 69, August 1940 accounts and the
issuance of TCT No. 4812 in favor of the
Municipality; Tax Declaration No. 892627 in the
name of the Municipality which cancelled Tax
Declaration No. 31954; and the subsequent Tax
Declaration Nos. 22184,28 332,29 and 04-006-
00068.30
The defense presented the testimony of Mr.
Jose Adra,31 the Principal of Daraga North
Central Elementary School, who testified on the
Municipality’s donation of disputed Lot 6849 to
petitioner and the improvements on said lot
amounting to more than PhP 11 million; and
541 | PART 1 C O N S T I 1 FULLTEXT
Mrs. Toribia Milleza,32 a retired government
employee and resident of Bagumbayan, Daraga,
Albay since 1955, who testified on the
Municipality’s continuous and adverse
possession of the disputed lot since 1940.
As mentioned earlier, Civil Case No. 8724 for
Partition, Reconveyance and Damages was
instituted by the heirs of Rafael Oñate in Legaspi
City RTC, Branch IX against Spouses Celso
Oñate and Allem Vellez, involving the same
disputed lot. Petitioner and co-defendant
Municipality of Daraga, Albay were about to file
a complaint for intervention in said case, but it
was overtaken by the resolution of the case on
August 14, 1995 with the trial court dismissing
the complaint.
The Ruling of the RTC
On November 3, 1997, the trial court rendered a
Decision in favor of respondent Celso Oñate.
The dispositive portion declared, thus:
WHEREFORE, premises considered, judgment
is hereby rendered in favor of the plaintiff and
against the defendants:
1. Declaring the Deed of Donation
executed by the Municipality of Daraga,
Albay in favor of the defendant
Department of Education Culture and
Sports through the Albay Schools
Division as null and void;
2. Declaring the plaintiff as the owner in
fee simple of Lots Nos. 6849-A, 6849-C,
6849-D and 6849-E which are registered
in his name;
3. Commanding the defendants to return
the possession of the portion of the land
occupied by the school site to the herein
plaintiff Celso Oñate;
4. Ordering the plaintiff for reason of
equity, to pay the defendant Municipality
of Daraga, Albay the amount of Fifty
Thousand (50,000.00) Pesos pursuant
to Article 479 of the New Civil Code of
the Philippines;
5. The defendant Department of
Education Culture and Sports being a
builder in good faith, the provisions of
Article 448 of the New Civil Code of the
Philippines shall be observed by the
parties; and
6. Ordering the defendants to pay the
costs of the suit. No attorney’s fees is
hereby adjudged in favor of plaintiff’s
counsel.
SO ORDERED.33
The trial court ratiocinated that it was clear that
subject Lot 6849 was originally registered under
the Torrens System in the name of Spouses
Claro Oñate and Gregoria Los Baños as
evidenced by OCT No. RO-18971. The right of
respondent Celso Oñate over the disputed lot
had not been proven otherwise or overturned in
Civil Case No. 8724, and this was bolstered by
the Deed of Extrajudicial Settlement of Estate
and Cession, where respondent’s sister waived
their successional rights in his favor. Thus, the
trial court ruled in favor of respondent’s title.
Besides, it further ruled that defendants could
not assail the registered title of respondent in a
collateral proceeding.
While the Municipality of Daraga, Albay
anchored its prior ownership over the disputed
lot by virtue of a sale in 1940 and mentioned
TCT No. 4812 supposedly issued in its name, it
however failed to submit any deed of
conveyance in its favor, as well as a copy of the
alleged TCT No. 4812. Hence, the trial court
held that its claim over disputed Lot 6849 was
based solely on adverse prescription which
could not prevail over respondent’s registered
title.
The trial court concluded that given these factual
and evidentiary proofs, petitioner had no right to
occupy Lot 6849-A, and the Deed of Donation
executed by the Municipality of Daraga, Albay in
favor of petitioner must be nullified. Finally, the
trial court awarded PhP 50,000 to the
Municipality of Daraga, Albay for the cost of
landfill and ordered that Article 44834 of the New
Civil Code be followed by the parties as
petitioner was a builder in good faith.
The Ruling of the Court of Appeals
Aggrieved, petitioner DECS and Municipality of
Daraga, Albay filed their respective Notices of
Appeal35 assailing the trial court’s Decision
before the CA. However, on June 17, 1998, the
appellate court declared the appeals of both
petitioners abandoned and dismissed for their
failure to pay the required docket fees within the
reglementary period.36 Petitioner then filed a
Motion for Reconsideration37 of the said June 17,
1998 Resolution and its appeal was
subsequently reinstated.38 The Municipality of
Daraga, Albay, however, totally lost its appeal
542 | PART 1 C O N S T I 1 FULLTEXT
due to inaction, and the appellate court
correspondingly issued a Partial Entry of
Judgment on July 9, 1998.39
Moreover, the appellate court held that there
was no jurisdictional defect in the reconstitution
proceeding being one in rem, and in the
issuance of OCT No. RO-18971 based on the
destroyed or lost OCT No. 2563, even if no
notice was sent to petitioner. Thus, the CA ruled
that respondent’s claim of ownership over Lot
6849-A occupied by the school is conclusive for
being soundly predicated on TCT No. T-83946
which cancelled the reconstituted OCT No. RO-
18971. Furthermore, it reiterated the trial court’s
holding that petitioner is precluded from
attacking collaterally respondent’s title over the
disputed lot in this proceeding.
The CA emphasized that petitioner’s failure to
present TCT No. 4812––allegedly issued in the
name of the Municipality of Daraga, Albay in
1940 in lieu of OCT No. 2563 and the Deed of
Conveyance executed by the original owner,
Claro Oñate, in favor of the Municipality––was
fatal to the defense. It reasoned that "all the
more had their claim of ownership become
doubtful when defendants-appellants [sic] failed
to explain from their pleadings and the evidence
submitted before Us their failure to present the
two documents."40 The appellate court concluded
that given these facts, no title in the name of the
Municipality ever existed and thus it could not
have validly donated the subject property to
petitioner.
Anent the issue of the applicability of Amigable
v. Cuenca,41 the CA affirmed the doctrine
enunciated in said case that "to uphold the
State’s immunity from suit would subvert the
ends of justice." In fine, the appellate court
pointed out the inconvenience and impossibility
of restoring possession of Lot 6849-A to
respondent considering the substantial
improvements built on said lot by the
government which amounted to almost PhP 12
million; and that the only relief available was for
the government to pay just compensation in
favor of respondent computed on the basis of
the value of the property at the time of the
government’s taking of the land.
Through its assailed Decision,42 the CA
dismissed petitioner’s appeal for lack of merit
and affirmed the trial court’s decision in toto. It
reasoned that laches does not apply, its
application rests on the sound discretion of the
court, and where the court believes that its
application would result in manifest wrong or
injustice, it is constrained not to be guided
strictly by said doctrine. Besides, it opined that
laches could not defeat the rights of a registered
owner.
The Issues
Hence, we have the instant petition where
petitioner raises the following assignment of
errors:
I
THE COURT OF APPEALS ERRED IN
AFFIRMING THE TRIAL COURT’S FINDING
THAT RESPONDENT’S CAUSE OF ACTION
TO RECOVER POSSESSION OF THE
SUBJECT PROPERTY IS NOT YET BARRED
BY LACHES.
II
THE COURT OF APPEALS ERRED IN
ACCORDING GREAT WEIGHT ON
RESPONDENT’S RECONSTITUTED
ORIGINAL CERTIFICATE OF TITLE (OCT) NO.
2563 COVERING SUBJECT PROPERTY.
III
THE COURT OF APPEALS ERRED IN RULING
THAT PETITIONER MAY BE SUED IN
VIOLATION OF THE STATE’S IMMUNITY
FROM SUIT.
IV
THE COURT OF APPEALS ERRED IN RULING
THAT PETITIONER MAY BE SUED
INDEPENDENTLY OF THE REPUBLIC OF THE
PHILIPPINES.43
Petitioner basically raises two issues—the
application of laches and the non-suability of the
State.
The threshold issue is whether petitioner DECS
can be sued in Civil Case No. 8715 without its
consent. A supplementary issue is whether
petitioner DECS can be sued independently of
the Republic of the Philippines.
We rule that petitioner DECS can be sued
without its permission as a result of its being
privy to the Deed of Donation executed by the
Municipality of Daraga, Albay over the disputed
property. When it voluntarily gave its consent to
the donation, any dispute that may arise from it
would necessarily bring petitioner DECS down to
the level of an ordinary citizen of the State
vulnerable to a suit by an interested or affected
543 | PART 1 C O N S T I 1 FULLTEXT
party. It has shed off its mantle of immunity and
relinquished and forfeited its armor of non-
suability of the State.44
The auxiliary issue of non-joinder of the Republic
of the Philippines is likewise resolved in the
negative. While it is true that petitioner is an
unincorporated government agency, and as
such technically requires the Republic of the
Philippines to be impleaded in any suit against
the former, nonetheless, considering our
resolution of the main issue below, this issue is
deemed mooted. Besides, at this point, we deem
it best to lift such procedural technicality in order
to finally resolve the long litigation this case has
undergone. Moreover, even if we give due
course to said issue, we will arrive at the same
ruling.
The Republic of the Philippines need not be
impleaded as a party-defendant in Civil Case
No. 8715 considering that it impliedly gave its
approval to the involvement of petitioner DECS
in the Deed of Donation. In a situation involving
a contract between a government department
and a third party, the Republic of the Philippines
need not be impleaded as a party to a suit
resulting from said contract as it is assumed that
the authority granted to such department to
enter into such contract carries with it the full
responsibility and authority to sue and be sued
in its name.
Main Issue: Equitable Remedy of Laches
Petitioner strongly asserts that the Municipality
of Daraga, Albay had continuous, open, and
adverse possession in the concept of an owner
over the disputed lot since 1940 until December
21, 1988 or for about 48 years. Significantly, it
maintains that Tax Declaration No. 31954
covering the disputed lot in the name of the
Municipality of Daraga, Albay contains an
annotation certifying that said lot was "under
voucher No. 69, August, 1940 accounts. The
corresponding Transfer Title No. 4812 has been
issued by the Register of Deeds Office of Albay
on August 3, 1940."45
When petitioner received the lot as donation
from the Municipality on December 21, 1988, it
possessed the subject lot also in the concept of
an owner and continued to introduce
improvements on the lot. Consequently, when
respondent instituted the instant case in 1993,
petitioner and its predecessor-in-interest
Municipality of Daraga, Albay had possessed the
subject lot for a combined period of about fifty
two (52) years.
Petitioner strongly avers that Claro Oñate, the
original owner of subject lot, sold it to the
Municipality. At the very least it asserts that said
Claro Oñate allowed the Municipality to enter,
possess, and enjoy the lot without protest. In
fact, Claro Oñate neither protested nor
questioned the cancellation of his Tax
Declaration No. 30235 covering the disputed lot
and its substitution by Tax Declaration No.
31954 in the name of the Municipality on
account of his sale of the lot to the latter. In the
same vein, when Claro Oñate and his spouse
died, their children Antonio, Rafael, and
Francisco who succeeded them also did not take
any steps to question the ownership and
possession by the Municipality of the disputed
lot until they died on June 8, 1990, June 12,
1991, and October 22, 1957, respectively.
Petitioner maintains that significantly,
respondent and his siblings— succeeding their
father Francisco as the alleged owners, from his
death on October 22, 1957—also did not take
any action to recover the questioned lot from
1957 until 1993 when the instant suit was
commenced. Petitioner avers that if they were
really the owners of said lot, they would not have
waited 52 long years to institute the suit
assuming they have a cause of action against
the Municipality or petitioner. Thus, petitioner
submits that the equitable principle of laches has
indubitably set in to bar respondent’s action to
recover possession of, and title to, the disputed
lot.
Laches and its elements
Indeed, it is settled that rights and actions can
be lost by delay and by the effect of delay as the
equitable defense of laches does not concern
itself with the character of the defendant’s title,
but only with plaintiff’s long inaction or
inexcusable neglect to bar the latter’s action as it
would be inequitable and unjust to the
defendant.
Laches is defined as the failure or neglect, for an
unreasonable and unexplained length of time, to
do that which—by the exercise of due
diligence—could or should have been done
earlier.46 Verily, laches serves to deprive a party
guilty of it to any judicial remedies. Its elements
are: (1) conduct on the part of the defendant, or
of one under whom the defendant claims, giving
rise to the situation which the complaint seeks a
remedy; (2) delay in asserting the complainant's
rights, the complainant having had knowledge or
notice of the defendant's conduct as having
been afforded an opportunity to institute a suit;
(3) lack of knowledge or notice on the part of the
defendant that the complainant would assert the
544 | PART 1 C O N S T I 1 FULLTEXT
right in which the defendant bases the suit; and
(4) injury or prejudice to the defendant in the
event relief is accorded to the complainant, or
the suit is not held barred.47
In Felix Gochan and Sons Realty Corporation,
we held that "[t]hough laches applies even to
imprescriptible actions, its elements must be
proved positively. Laches is evidentiary in
nature which could not be established by mere
allegations in the pleadings and can not be
resolved in a motion to dismiss (emphases
supplied)."48 In the same vein, we explained in
Santiago v. Court of Appeals that there is "no
absolute rule as to what constitutes laches or
staleness of demand; each case is to be
determined according to its particular
circumstances."49
Issue of laches not barred by adverse judgment
against Daraga, Albay
It is unfortunate that defendant Municipality of
Daraga, Albay lost its appeal in CA-G.R. CV No.
60659 before the CA for its failure to pay the
required docket fees within the reglementary
period. As a result, a Partial Entry of Judgment
was made on July 9, 1998 and consequently,
the dispositions in the November 3, 1997
Decision, rendered by the Legaspi City RTC,
Branch I in favor of respondent Celso Oñate,
became final and executory as against
defendant Municipality of Daraga, Albay.
As an off-shoot, with respect to the Municipality
of Daraga, the Deed of Donation in favor of
petitioner DECS was annulled––respondent
Oñate was declared owner in fee simple of the
disputed lots and entitled to possession but was
required to pay PhP 50,000 to the Daraga
Municipal Government and the costs of suit. By
reason of the finality of the Decision against the
Municipality of Daraga, Tax Declaration Nos. 04-
006-00068, 332, 22184, 31954, and 8926 are all
cancelled and annulled (if not yet cancelled).
What are the effects of the final judgment
against Municipality of Daraga on its co-
defendant, petitioner DECS?
Generally, it has no impact on the appeal of
DECS unless the decision affects its defenses.
In this petition, DECS no longer questions the
declaration of nullity of the Deed of Donation
over the disputed lot and hence can be
considered as a final resolution of the issue.
Likewise, it does not challenge the ownership of
Oñate of the disputed lots, but merely relied on
the defense of laches. The final directive for
Municipality of Daraga to return possession of
the land has no significance on DECS’ appeal
since precisely, it is DECS’ position that it should
retain possession of the land. From these
considerations, the final RTC November 3, 1997
Decision against the Municipality of Daraga has
no substantial and material effect upon the
DECS’ appeal.
The only remaining issue left is whether laches
can inure to the benefit of petitioner DECS
considering the fact that Lot No. 6849-A was
devoted to public education when the
elementary school was built in 1940 under the
supervision and control of DECS up to 1993
when Civil Case No. 8715 was filed by
respondent Oñate.
We rule in the affirmative.
Laches has set in
A brief scrutiny of the records does show tell-tale
signs of laches. The first element is undisputed:
the then Bagumbayan Elementary School of
Daraga was constructed in 1940 on a portion of
disputed Lot 6849, specifically Lot No. 6849-A
containing 13,072 square meters under TCT No.
T-83946. Moreover, Mrs. Toribia Milleza,50 a
retired government employee and resident of
Bagumbayan, Daraga since 1955 pertinently
testified, thus:
Q: How long have you been residing in this
place, Bagumbayan, Daraga, Albay?
A: Maybe I stayed there in 1955 until the
present.51
xxxx
Q: Now, can you further recall the kind of
building that was constructed in this property?
A: Seva type, building.
Q: At present how many buildings were
constructed in this property?
A: Plenty of school buildings.
Q: Now, how many buildings were first
constructed in [sic] this property?
A: In 1955 only one, the Seva type, then there
was constructed five (5) Marcos Type buildings
during the Marcos time.52
545 | PART 1 C O N S T I 1 FULLTEXT
The devotion of Lot No. 6849-A to education
started in 1940 and continued up to December
21, 1988 when said lot was donated to the
DECS. From then on, DECS built various
buildings and introduced improvements on said
lot. Lot No. 6849-A was continuously used for
public education until March 18, 1993 when
respondent Oñate filed Civil Case No. 8715 and
thereafter up to the present.
Thus, for a total period of more than fifty-two
(52) years, Lot No. 6849-A was exclusively and
completely utilized by DECS for public
education. This fact was not successfully
challenged nor refuted by respondent.
The second element of laches was likewise
proven. No evidence was presented to show that
respondent or his predecessors-in-interest ever
took any action, administrative or judicial, nor
either party questioned or protested the
Municipality’s adverse occupation of a portion of
Lot 6849. As petitioner had demonstrated laches
by persuasive and credible evidence, it is
incumbent upon respondent to show that his
predecessors-in-interest indeed protected their
rights of ownership over the lot. Thus, as early
as 1940, when the first Seva type school
building was constructed over a portion of the
disputed lot, now Lot 6849-A, respondent must
prove that his predecessors-in-interest indeed
undertook activities to contest the occupation of
the portion of the lot by the Municipality and
subsequently by petitioner DECS. Unfortunately,
respondent failed to substantiate such defense
of ownership and possession of the lot and even
skirted this issue.
Respondent testified that he came to know of
Lot 6849 only in 1973 when he was 23 years
old.53 He asserted that he took possession of
said lot in the same year when his two (2)
uncles, the brothers of his late father, passed on
to him the disputed lot as his father’s share of
the inheritance from the late Claro Oñate and
Gregoria Los Baños (his grandparents).
However, it is interesting to note that he testified
that he only came to know in 1991 that the
elementary school was built on a portion of Lot
6849, now Lot 6849-A. These assertions are
irreconcilable. Common experience tells us that
one who owns a property and takes possession
of it cannot fail to discover and know that an
existing elementary school was built and
standing on the lot from the time that the owner
starts possessing a property.
Nonetheless, even granting that respondent
indeed only came to know of such
encroachment or occupation in 1991, his rights
cannot be better than that of his predecessors-
in-interest, that is, Claro Oñate and his uncles,
Antonio and Rafael, who died in 1990 and 1991,
respectively. Since respondent’s right over the
lot originated from his predecessors-in-interest,
then he cannot have better rights over Lot No.
6849-A than the latter. The spring cannot rise
higher than its source. Besides, respondent has
not proffered any explanation why his
predecessors-in-interest did not protest and
challenge the Municipality’s occupancy over a
portion of their lot. Verily, with the span of
around 52 years afforded respondent and his
predecessors-in-interest, their inaction and delay
in protecting their rights were certainly excessive
and unjustified.
In the third element, the records clearly bear out
the fact that petitioner DECS did not know nor
anticipate that their possession and occupancy
of a portion of Lot 6849 would later be
questioned. In fact, petitioner built additional
school buildings and facilities on the school site
amounting to more than PhP 11 million. Mr. Jose
Adra, School Principal of the Daraga North
Central Elementary School, testified on the
donation of the disputed lot to petitioner and the
cost of the improvements on it.54 After more than
forty-eight (48) years of unquestioned, peaceful,
and uninterrupted possession by petitioner
DECS, it had no knowledge nor reason to
believe that respondent would assert any right
over the lot after the lapse of such long
occupation coupled with a tax declaration in the
name of the Daraga Municipality.
Finally, the last element is likewise proven by the
antecedent facts that clearly show grave
prejudice to the government, in general, and to
petitioner, in particular, if the instant action is not
barred without even considering the cost of the
construction of the school buildings and facilities
and the deleterious effect on the school children
and affected school teachers and personnel if
Lot No. 6849-A would be returned to
respondent.
Verily, the application of laches is addressed to
the sound discretion of the court as its
application is controlled by equitable
considerations. In the instant case, with the
foregoing considerations, we are constrained
from giving approbation to the trial and appellate
courts’ ruling that the application of the principle
of laches would subvert the ends of justice.
Indeed, it is unjust for the State and the affected
citizenry to suffer after respondent and his
predecessors-in-interest had slept on their rights
for 52 years.
Also, the inaction of respondent Oñate and his
predecessors-in-interest for over 50 years has
546 | PART 1 C O N S T I 1 FULLTEXT
reduced their right to regain possession of Lot
6849-A to a stale demand.
Laches holds over the actual area possessed
and occupied by petitioner
We, however, make the clear distinction that
laches applies in favor of petitioner only as
regards Lot 6849-A which is actually possessed
and occupied by it. Laches does not apply to Lot
Nos. 6849-B, 6849-C, 6849-D, and 6849-E.
These portions were never occupied by the
Municipality and petitioner. Agricultural tenant
Felicito Armenta testified that his father, Antonio
Armenta, started cultivating portions of Lot 6849
way back in the 1940s and that he took over the
tenancy in 1960 when his father stopped tilling
the land. Besides, if the Municipality indeed
owned Lot 6849 by virtue of a purchase, it is
likewise guilty of laches in not protecting or
contesting the cultivation by Oñates’ agricultural
tenants of said portions of Lot 6849.
Transfer Certificates of Title on portions of
Lot 6849 valid
Petitioner contends that the reconstitution of
OCT No. 2563—covering subject lot in 1991 or
52 years after the Municipality owned said lot—
does not in any way affect the latter’s
preferential and superior right over the disputed
lot. In the same vein, it maintains that it is
inconsequential that petitioner and the
Municipality failed to present as evidence the
deed of conveyance in favor of the Municipality,
as well as TCT No. 4812 as a registered land
owner may lose the right to recover possession
of a registered property by reason of laches.
Petitioner concludes that the long delayed
reconstitution of OCT No. 2563 by respondent
was a mere afterthought and intended to
camouflage his and his predecessor’s
unreasonably long inaction which indicates an
awareness that they have no valid claim
whatsoever over disputed Lot 6849.
We disagree.
It must be noted that a reconstitution proceeding
is one in rem and is thus binding to the whole
world. While it is true that laches has set in so
far as it pertains to the portion of Lot 6849,
specifically Lot 6849-A where the Municipality
and petitioner DECS had constructed the
existing school, such does not hold true for the
totality of Lot 6849 as explained above. Indeed,
the reconstitution proceeding being one in rem,
the consequent issuance of OCT No. RO-18971
in lieu of the lost or destroyed OCT No. 2563 is
valid.
Anent the issue of non-notification, we agree
with the observation of the courts a quo that
even granting arguendothat petitioner was not
notified about the reconstitution proceeding,
such deficiency is not jurisdictional as to nullify
and prevail over the final disposition of the trial
court in a proceeding in rem.
More so, while petitioner strongly asserts that
the certification in Tax Declaration No. 31954
attesting to the payment of the disputed lot
under Municipal Voucher No. 69 and the
issuance of TCT No. 4812, which was never
disputed nor controverted by respondent, should
have been given evidentiary weight by the trial
and appellate courts as the presumptions of
regularity and validity of such official act have
not been overcome, such documents cannot
defeat the registered title of respondent.
Between a clear showing of ownership
evidenced by a registered title and a certification
in a tax declaration, albeit done in an official
capacity, the former holds as the latter is only
persuasive evidence. Indeed, tax declarations in
land cases per se do not constitute ownership
without other substantial pieces of evidence.
The records do not show and petitioner has not
given any cogent explanation why the Deed of
Conveyance in favor of the Municipality of
Daraga, Albay and TCT No. 4812 were not
presented. With clear and affirmative defenses
set up by petitioner and Municipality of Daraga,
Albay, it is incumbent for them to present these
documents. Therefore, the unmistakable
inference is that there was indeed no sale and
conveyance by Claro Oñate of Lot 6849 in favor
of the Municipality. Consequently, the TCTs
cancelling OCT No. RO-18971 covering Lot Nos.
6849-A, 6849-B, 6849-C, 6849-D, and 6849-E
were likewise validly issued.
Thus, notwithstanding valid titles over the
portions of Lot 6849, respondent Oñate cannot
now take possession over Lot No. 6849-A for
reason of laches. In the recent case of De Vera-
Cruz v. Miguel, we reiterated the principle we
have consistently applied in laches:
The law55 provides that no title to registered land
in derogation of that of the registered owner can
be acquired by prescription or adverse
possession. Nonetheless, while it is true that a
Torrens Title is indefeasible and imprescriptible,
the registered landowner may lose his right to
recover the possession of his registered property
by reason of laches.56
547 | PART 1 C O N S T I 1 FULLTEXT
Thus, with our resolution of the principal issue of 3) Declaring Mariano M. Lim as true and legal
applicability of the equitable remedy of laches, owner of Lot 6849-B with an area of 3,100
the issue of suability of the State has been square meters under TCT No. T-84049 of the
mooted. Registry of Deeds of Albay;

A final word. Considering our foregoing
disquisition and upon grounds of equity, a
modification of the final decision prevailing
between respondent Oñate and the Municipality
of Daraga, Albay is in order. It would be grossly
iniquitous for respondent Oñate to pay PhP
50,000 to the Municipality of Daraga, Albay
considering that he is not entitled to recover the
possession and usufruct of Lot No. 6849-A.
WHEREFORE, the instant petition
is GRANTED and the January 14, 2004
Decision of the CA in CA-G.R. CV No. 60659
affirming the November 3, 1997 Decision of the
Legaspi City RTC is AFFIRMED with the
following modifications:
4) Ordering petitioner DECS and all other
persons claiming under said department to
return the possession of Lots 6849-C, 6849-D,
and 6849-E to respondent Celso Oñate and Lot
6849-B to Mariano M. Lim; and
5) Deleting Item No. 4 of the November 3, 1997
Decision of the Legaspi City RTC, which ordered
respondent Celso Oñate to pay Fifty Thousand
Pesos (PhP 50,000) to defendant Municipality of
Daraga, Albay.
The November 3, 1997 Decision of the Legaspi
City RTC is AFFIRMED in all other respects.
No costs.

1) Declaring the DepEd (formerly DECS), SO ORDERED.

Division of Albay to have the rights of
possession and usufruct over Lot 6849-A with an
area of 13,072 square meters under TCT No. T- PRESBITERO J. VELASCO, JR.
83946 of the Registry of Deeds of Albay, as a Associate Justice
result of laches on the part of respondent Celso
Oñate and his predecessors-in-interest. WE CONCUR:
Respondent Celso Oñate, his heirs, assigns,
and successors-in-interest are prohibited from LEONARDO A. QUISUMBING
selling, mortgaging, or encumbering Lot 6849-A Associate Justice
while the said lot is still being used and occupied Chairperson
by petitioner DECS. However, the rights of
possession and usufruct will be restored to ANTONIO T. CONCHITA CARPIO
respondent the moment petitioner DECS no CARPIO MORALES
longer needs the said lot. The Registry of Deeds Associate Justice Associate Justice
of Albay is ordered to annotate the
aforementioned restrictions and conditions at the
back of TCT No. T-83946-A in the name of DANTE O. TINGA
respondent Celso Oñate. Item No. 2 of the Associate Justice
November 3, 1997 Decision of the Legaspi City
RTC is modified accordingly;

2) Declaring Celso Oñate as the true and legal

owner in fee simple of the following lots: ATTESTATION

a. Lot 6849-C with an area of 10,000 square
meters under TCT No. T-83948 of the Registry
of Deeds of Albay;
b. Lot 6849-D with an area of 1,127 square
meters under TCT No. T-83949 of the Registry
of Deeds of Albay; and
c. Lot 6849-E with an area of 608 square meters
under TCT No. T-83950 of the Registry of Deeds
of Albay.
I attest 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’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s
548 | PART 1 C O N S T I 1 FULLTEXT
Attestation, I certify that the conclusions in the TSN, November 3, 1993 and July 12,
19

above Decision had been reached in 1994.

consultation before the case was assigned to the
writer of the opinion of the Court’s Division. TSN, February 14, 1994 and August 3,
20

1995.
REYNATO S. PUNO
Chief Justice 21
Records, pp. 97-100.

22
Id. at 106-111.

23
Id. at 112-117, March 11, 1994 Order
Footnotes of the RTC.
1
Rollo, pp. 13-48. 24
Id. at 189.
2
Id. at 50-60. The Decision was penned 25
Id. at 195.
by Associate Justice Sergio L. Pestaño
and concurred in by Associate Justices 26
Id. at 101.
Marina L. Buzon (Chairperson) and Jose
C. Mendoza.
27
Id. at 102.
3
Id. at 61-82.
28
Id. at 103.
4
Records, pp. 6-7.
29
Id. at 104.
5
Issued on October 16, 1992.
30
Id. at 105.
6
Records, pp. 164-171. See the August
14, 1995 Decision entitled Heirs of
31
TSN, February 22, 1996.
Rafael Oñate, represented by Diego
Oñate v. Spouses Celso Oñate and 32
TSN, September 30, 1996.
Allem Vellez.
33
Supra note 3, at 81-82.
7
Id. at 178-179.
34
Art. 448. The owner of the land on
8
Id. at 180-181. which anything has been built, sown or
planted in good faith, shall have the right
9
Id. at 182-183. to appropriate as his own the works,
sowing or planting, after payment of the
indemnity provided for in Articles 456
10
Id. at 184-185.
and 548, or to oblige the one who built
or planted to pay the price of the land,
11
Id. at 186-187. and the one who sowed, the proper rent.
However, the builder or planter cannot
12
Id. at 190-191. be obliged to buy the land if its value is
considerably more than that of the
13
Id. at 192. building or trees. In such case, he shall
pay reasonable rent, if the owner of the
14
Id. at 193. land does not choose to appropriate the
building or trees after proper indemnity.
The parties shall agree upon the terms
15
Id. at 194.
of the lease and in case of
disagreement, the court shall fix the
16
Id. at 1-4. terms thereof.
17
Id. at 24-27. 35
Records, pp. 296 & 298.
18
Id. at 29-31. 36
CA rollo, p. 17.

549 | PART 1 C O N S T I 1 FULLTEXT

37
Id. at 18-19. 55
Act. No. 496, Sec. 46 (The Land
Registration Act), now P.D. No. 1529
38
Id. at 21. (Property Registration Decree).

39
Id. at 28.
56
G.R. No. 144103, August 31, 2005,
468 SCRA 506, 518; citing Isabela
Colleges, Inc. v. Heirs of Nieves
40
Id. at 59.
Tolentino-Rivera, G.R. No. 132677,
October 20, 2000, 344 SCRA 95, 106-
G.R. No. L-26400, February 29, 1972,
41
107.
43 SCRA 360.

42
Supra note 2.

43
Rollo, pp. 25-26.

44
See United States of America v.
Guinto, G.R. Nos. 76607, 79470, 80018
& 80258, February 26, 1990, 182 SCRA
644; and DAR v. NLRC, G.R. No.
104269, November 11, 1993, 227 SCRA
693.

45
Records, p. 213.

46
Soliva v. The Intestate Estate of
Marcelo M. Villalba, G.R. No. 154017,
December 8, 2003, 417 SCRA 277, 286;
citing Ramos v. Heirs of Ramos, Sr.,
G.R. No. 140848, April 25, 2002, 381
SCRA 594, 605; and Westmont Bank v.
Ong, G.R. No. 132560, January 30,
2002, 375 SCRA 212, 222.

Felix Gochan and Sons Realty

47

Corporation v. Heirs of Baba, G.R. No.

138945, August 19, 2003, 409 SCRA
306, 315; citing Santos v. Santos, G.R.
No. 133895, October 2, 2001, 366
SCRA 395, 405-406.

48
Id.

G.R. No. 103959, August 21, 1997,

49

278 SCRA 98, 112.

50
Supra note 32.

51
Id. at 4.

52
Id. at 5.

53
Supra note 19.

54
Supra note 31.

550 | PART 1 C O N S T I 1 FULLTEXT

551 | PART 1 C O N S T I 1 FULLTEXT
 FIRST DIVISION
G.R. No. 161657 October 4, 2007
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
HON. VICENTE A. HIDALGO, in his capacity
as Presiding Judge of the Regional Trial
Court of Manila, Branch 37, CARMELO V.
CACHERO, in his capacity as Sheriff IV,
Regional Trial Court of Manila, and TARCILA
LAPERAL MENDOZA, Respondents.
DECISION
GARCIA, J.:
Via this verified petition for certiorari and
prohibition under Rule 65 of the Rules of Court,
the Republic of the Philippines ("Republic," for
short), thru the Office of the Solicitor General
(OSG), comes to this Court to nullify and set
aside the decision dated August 27, 2003 and
other related issuances of the Regional Trial
Court (RTC) of Manila, Branch 37, in its Civil
Case No. 99-94075. In directly invoking the
Court’s original jurisdiction to issue the
extraordinary writs of certiorari and prohibition,
without challenge from any of the respondents,
the Republic gave as justification therefor the
fact that the case involves an over TWO
BILLION PESO judgment against the State,
allegedly rendered in blatant violation of the
Constitution, law and jurisprudence.
By any standard, the case indeed involves a
colossal sum of money which, on the face of the
assailed decision, shall be the liability of the
national government or, in fine, the taxpayers.
This consideration, juxtaposed with the
constitutional and legal questions surrounding
the controversy, presents special and compelling
reasons of public interests why direct recourse
to the Court should be allowed, as an exception
to the policy on hierarchy of courts.
At the core of the litigation is a 4,924.60-square
meter lot once covered by Transfer Certificate of
Title (TCT) No. 118527 of the Registry of Deeds
of Manila in the name of the herein private
respondent Tarcila Laperal Mendoza (Mendoza),
married to Perfecto Mendoza. The lot is situated
at No. 1440 Arlegui St., San Miguel, Manila,
near the Malacañang Palace complex. On this
lot, hereinafter referred to as the Arlegui
property, now stands the Presidential Guest
House which was home to two (2) former
Presidents of the Republic and now appears to
be used as office building of the Office of the
President.1
The facts:
Sometime in June 1999, Mendoza filed a suit
with the RTC of Manila for reconveyance and
the corresponding declaration of nullity of a deed
of sale and title against the Republic, the
Register of Deeds of Manila and one Atty. Fidel
Vivar. In her complaint, as later amended,
docketed as Civil Case No. 99-94075 and
eventually raffled to Branch 35 of the court,
Mendoza essentially alleged being the owner of
the disputed Arlegui property which the
Republic forcibly dispossessed her of and over
which the Register of Deeds of Manila issued
TCT No. 118911 in the name of the Republic.
Answering, the Republic set up, among other
affirmative defenses, the State’s immunity from
suit.
The intervening legal tussles are not essential to
this narration. What is material is that in an
Order of March 17, 2000, the RTC of Manila,
Branch 35, dismissed Mendoza’s complaint. The
court would also deny, in another order dated
May 12, 2000, Mendoza’s omnibus motion for
reconsideration. On a petition for certiorari,
however, the Court of Appeals (CA), in CA-G.R.
SP No. 60749, reversed the trial court’s assailed
orders and remanded the case to the court a
quo for further proceedings.2 On appeal, this
Court, in G.R. No. 155231, sustained the CA’s
reversal action.3
From Branch 35 of the trial court whose then
presiding judge inhibited himself from hearing
the remanded Civil Case No. 99-94075, the case
was re-raffled to Branch 37 thereof, presided by
the respondent judge.
On May 5, 2003, Mendoza filed a Motion for
Leave of Court to file a Third Amended
Complaint with a copy of the intended third
amended complaint thereto attached. In the May
16, 2003 setting to hear the motion, the RTC, in
open court and in the presence of the Republic’s
counsel, admitted the third amended complaint,
ordered the Republic to file its answer thereto
within five (5) days from May 16, 2003 and set a
date for pre-trial.
In her adverted third amended complaint for
recovery and reconveyance of the Arlegui
property, Mendoza sought the declaration of
nullity of a supposed deed of sale dated July 15,
1975 which provided the instrumentation toward
the issuance of TCT No. 118911 in the name of
the Republic. And aside from the cancellation of
TCT No. 118911, Mendoza also asked for the
reinstatement of her TCT No. 118527.4 In the
552 | PART 1 C O N S T I 1 FULLTEXT
same third amended complaint, Mendoza
averred that, since time immemorial, she and
her predecessors-in-interest had been in
peaceful and adverse possession of the property
as well as of the owner’s duplicate copy of TCT
No. 118527. Such possession, she added,
continued "until the first week of July 1975 when
a group of armed men representing themselves
to be members of the Presidential Security
Group [PSG] of the then President Ferdinand E.
Marcos, had forcibly entered [her] residence and
ordered [her] to turn over to them her … Copy of
TCT No. 118525 … and compelled her and the
members of her household to vacate the same
…; thus, out of fear for their lives, [she] handed
her Owner’s Duplicate Certificate Copy of TCT
No. 118527 and had left and/or vacated the
subject property." Mendoza further alleged the
following:
1. Per verification, TCT No. 118527 had
already been cancelled by virtue of a
deed of sale in favor of the Republic
allegedly executed by her and her
deceased husband on July 15, 1975 and
acknowledged before Fidel Vivar which
deed was annotated at the back of TCT
No. 118527 under PE: 2035/T-118911
dated July 28, 1975; and
2. That the aforementioned deed of sale
is fictitious as she (Mendoza) and her
husband have not executed any deed of
conveyance covering the disputed
property in favor of the Republic, let
alone appearing before Fidel Vivar.
Inter alia, she prayed for the following:
4. Ordering the … Republic to pay
plaintiff [Mendoza] a reasonable
compensation or rental for the use or
occupancy of the subject property in the
sum of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS a month with a
five (5%) per cent yearly increase, plus
interest thereon at the legal rate,
beginning July 1975 until it finally
vacates the same;
5. Ordering the … Republic to pay
plaintiff’s counsel a sum equivalent to
TWENTY FIVE (25%) PER CENT of the
current value of the subject property
and/or whatever amount is recovered
under the premises; Further, plaintiff
prays for such other relief, just and
equitable under the premises.
On May 21, 2003, the Republic, represented by
the OSG, filed a Motion for Extension (With
Motion for Cancellation of scheduled pre-trial). In
it, the Republic manifested its inability to simply
adopt its previous answer and, accordingly,
asked that it be given a period of thirty (30) days
from May 21, 2003 or until June 20, 2003 within
which to submit an Answer.5 June 20, 2003
came and went, but no answer was filed.
On July 18, 2003 and again on August 19,
2003, the OSG moved for a 30-day extension at
each instance. The filing of the last two motions
for extension proved to be an idle gesture,
however, since the trial court had meanwhile
issued an order6 dated July 7, 2003 declaring the
petitioner Republic as in default and allowing the
private respondent to present her evidence ex-
parte.
The evidence for the private respondent, as
plaintiff a quo, consisted of her testimony
denying having executed the alleged deed of
sale dated July 15, 1975 which paved the way
for the issuance of TCT No. 118911. According
to her, said deed is fictitious or inexistent, as
evidenced by separate certifications, the first
(Exh. "E"), issued by the Register of Deeds for
Manila and the second (Exh. "F"), by the Office
of Clerk of Court, RTC Manila. Exhibit "E"7states
that a copy of the supposed conveying deed
cannot, despite diligent efforts of records
personnel, be located, while Exhibit "F"8 states
that Fidel Vivar was not a commissioned notary
public for and in the City of Manila for the year
1975. Three other witnesses9 testified, albeit
their testimonies revolved around the appraisal
and rental values of the Arlegui property.
Eventually, the trial court rendered a judgment
by default10 for Mendoza and against the
Republic. To the trial court, the Republic had
veritably confiscated Mendoza’s property, and
deprived her not only of the use thereof but also
denied her of the income she could have had
otherwise realized during all the years she was
illegally dispossessed of the same.
Dated August 27, 2003, the trial court’s decision
dispositively reads as follows:
WHEREFORE, judgment is hereby rendered:
1. Declaring the deed of sale dated July
15, 1975, annotated at the back of [TCT]
No. 118527 as PE:2035/T-118911, as
non-existent and/or fictitious, and,
therefore, null and void from the
beginning;
553 | PART 1 C O N S T I 1 FULLTEXT
 2. Declaring that [TCT] No. 118911 of
the defendant Republic of the
Philippines has no basis, thereby
making it null and void from the
beginning;
3. Ordering the defendant Register of
Deeds for the City of Manila to reinstate
plaintiff [Mendoza’s TCT] No. 118527;
4. Ordering the defendant Republic … to
pay just compensation in the sum of
ONE HUNDRED FORTY THREE
MILLION SIX HUNDRED THOUSAND
(P143,600,000.00) PESOS, plus interest
at the legal rate, until the whole amount
is paid in full for the acquisition of the
subject property;
5. Ordering the plaintiff, upon payment
of the just compensation for the
acquisition of her property, to execute
the necessary deed of conveyance in
favor of the defendant Republic …; and,
on the other hand, directing the
defendant Register of Deeds, upon
presentation of the said deed of
conveyance, to cancel plaintiff’s TCT
No. 118527 and to issue, in lieu thereof,
a new Transfer Certificate of Title in
favor of the defendant Republic;
6. Ordering the defendant Republic … to
pay the plaintiff the sum of ONE
BILLION FOUR HUNDRED EIGHTY
MILLION SIX HUNDRED TWENTY
SEVEN THOUSAND SIX HUNDRED
EIGHTY
EIGHT (P1,480,627,688.00) PESOS,
representing the reasonable rental for
the use of the subject property, the
interest thereon at the legal rate, and the
opportunity cost at the rate of three (3%)
per cent per annum, commencing July
1975 continuously up to July 30, 2003,
plus an additional interest at the legal
rate, commencing from this date until
the whole amount is paid in full;
7. Ordering the defendant Republic … to
pay the plaintiff attorney’s fee, in an
amount equivalent to FIFTEEN (15%)
PER CENT of the amount due to the
plaintiff.
With pronouncement as to the costs of suit.
SO ORDERED. (Words in bracket and emphasis
added.)
Subsequently, the Republic moved for, but was
denied, a new trial per order of the trial court of
October 7, 2003.11Denied also was its
subsequent plea for reconsideration.12 These
twin denial orders were followed by several
orders and processes issued by the trial court on
separate dates as hereunder indicated:
1. November 27, 2003 - - Certificate of
Finality declaring the August 27, 2003
decision final and executory.13
2. December 17, 2003 - - Order denying
the Notice of Appeal filed on November
27, 2003, the same having been filed
beyond the reglementary period.14
3. December 19, 2003 - -
Order15 granting the private respondent’s
motion for execution.
4. December 22, 2003 - - Writ of
Execution.16
Hence, this petition for certiorari.
By Resolution17 of November 20, 2006, the case
was set for oral arguments. On January 22,
2007, when this case was called for the purpose,
both parties manifested their willingness to settle
the case amicably, for which reason the Court
gave them up to February 28, 2007 to submit the
compromise agreement for approval. Following
several approved extensions of the February 28,
2007 deadline, the OSG, on August 6, 2007,
manifested that it is submitting the case for
resolution on the merits owing to the inability of
the parties to agree on an acceptable
compromise.
In this recourse, the petitioner urges the Court to
strike down as a nullity the trial court’s order
declaring it in default and the judgment by
default that followed. Sought to be nullified, too,
also on the ground that they were issued in
grave abuse of discretion amounting to lack or in
excess of jurisdiction, are the orders and
processes enumerated immediately above
issued after the rendition of the default
judgment.
Petitioner lists five (5) overlapping grounds for
allowing its petition. It starts off by impugning the
order of default and the judgment by default. To
the petitioner, the respondent judge committed
serious jurisdictional error when he proceeded to
hear the case and eventually awarded the
private respondent a staggering amount without
so much as giving the petitioner the opportunity
to present its defense.
554 | PART 1 C O N S T I 1 FULLTEXT
Petitioner’s posture is simply without merit.
Deprivation of procedural due process is
obviously the petitioner’s threshold theme. Due
process, in its procedural aspect, guarantees in
the minimum the opportunity to be
heard.18 Grave abuse of discretion, however,
cannot plausibly be laid at the doorstep of the
respondent judge on account of his having
issued the default order against the petitioner,
then proceeding with the hearing and eventually
rendering a default judgment. For, what the
respondent judge did hew with what Section 3,
Rule 9 of the Rules of Court prescribes and
allows in the event the defending party fails to
seasonably file a responsive pleading. The
provision reads:
SEC. 3. Default; declaration of.- If the defending
party fails to answer within the time allowed
therefor, the court shall, upon motion of the
claiming party with notice to the defending party,
and proof of such failure, declare the defending
party in default. Thereupon, the court shall
proceed to render judgment granting the
claimant such relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence ….19
While the ideal lies in avoiding orders of
default,20 the policy of the law being to have
every litigated case tried on its full merits,21 the
act of the respondent judge in rendering the
default judgment after an order of default was
properly issued cannot be struck down as a case
of grave abuse of discretion.
The term "grave abuse of discretion," in its
juridical sense, connotes capricious, despotic,
oppressive or whimsical exercise of judgment as
is equivalent to lack of jurisdiction.22 The abuse
must be of such degree as to amount to an
evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the
power is exercised in a capricious manner. The
word "capricious," usually used in tandem with
"arbitrary," conveys the notion of willful and
unreasoning action.23
Under the premises, the mere issuance by the
trial court of the order of default followed by a
judgment by default can easily be sustained as
correct and doubtless within its jurisdiction.
Surely, a disposition directing the Republic to
pay an enormous sum without the trial court
hearing its side does not, without more, vitiate,
on due procedural ground, the validity of the
default judgment. The petitioner may have
indeed been deprived of such hearing, but this
does not mean that its right to due process had
been violated. For, consequent to being
declared in default, the defaulting defendant is
deemed to have waived his right to be heard or
to take part in the trial. The handling solicitors
simply squandered the Republic’s opportunity to
be heard. But more importantly, the law itself
imposes such deprivation of the right to
participate as a form of penalty against one
unwilling without justification to join issue upon
the allegations tendered by the plaintiff.
And going to another point, the petitioner would
ascribe jurisdictional error on the respondent
judge for denying its motion for new trial based
on any or a mix of the following factors, viz., (1)
the failure to file an answer is attributable to the
negligence of the former handling solicitor; (2)
the meritorious nature of the petitioner’s
defense; and (3) the value of the property
involved.
The Court is not convinced. Even as the Court
particularly notes what the trial court had said on
the matter of negligence: that all of the
petitioner’s pleadings below bear at least three
signatures, that of the handling solicitor, the
assistant solicitor and the Solicitor General
himself, and hence accountability should go up
all the way to the top of the totem pole of
authority, the cited reasons advanced by the
petitioner for a new trial are not recognized
under Section 1, Rule 37 of the Rules of Court
for such recourse.24 Withal, there is no cogent
reason to disturb the denial by the trial court of
the motion for new trial and the denial of the
reiterative motion for reconsideration.
Then, too, the issuance by the trial court of the
Order dated December 17, 200325 denying the
petitioner’s notice of appeal after the court
caused the issuance on November 27, 2003 of a
certificate of finality of its August 27, 2003
decision can hardly be described as arbitrary, as
the petitioner would have this Court believe. In
this regard, the Court takes stock of the following
key events and material dates set forth in the
assailed December 17, 2003 order, supra: (a)
The petitioner, thru the OSG, received
on August 29, 2003 a copy of the RTC decision
in this case, hence had up to September 13,
2003, a Saturday, within which to perfect an
appeal; (b) On September 15, 2003, a Monday,
the OSG filed its motion for new trial, which the
RTC denied, the OSG receiving a copy of the
order of denial on October 9, 2003; and (c) On
October 24, 2003, the OSG sought
reconsideration of the order denying the motion
for new trial. The motion for reconsideration was
denied per Order dated November 25, 2003, a
copy of which the OSG received on the same
date.
555 | PART 1 C O N S T I 1 FULLTEXT
Given the foregoing time perspective, what the
trial court wrote in its aforementioned impugned
order of December 17, 2003 merits approval:
In the case at bar, it is clear that the motion for
new trial filed on the fifteenth (15th) day after the
decision was received on August 29, 2003 was
denied and the moving party has only the
remaining period from notice of notice of denial
within which to file a notice of appeal. xxx
Accordingly, when defendants [Republic et al.]
filed their motion for new trial on the last day of
the fifteen day (15) prescribed for taking an
appeal, which motion was subsequently denied,
they had one (1) day from receipt of a copy of
the order denying … new trial within which to
perfect [an] appeal …. Since defendants had
received a copy of the order denying their
motion for new trial on 09 October 2003,
reckoned from that date, they only have one (1)
day left within which to file the notice of appeal.
But instead of doing so, the defendants filed a
motion for reconsideration which was later
declared by the Court as pro forma motion in
the Order dated 25 November 2003. The
running of the prescriptive period, therefore, can
not be interrupted by a pro forma motion. Hence
the filing of the notice of appeal on 27 November
2007 came much too late for by then the
judgment had already become final and
executory.26 (Words in bracket added; Emphasis
in the original.)
It cannot be over-emphasized at this stage that
the special civil action of certiorari is limited to
resolving only errors of jurisdiction; it is not a
remedy to correct errors of judgment. Hence, the
petitioner’s lament, partly covered by and
discussed under the first ground for allowing its
petition, about the trial court taking cognizance
of the case notwithstanding private respondent’s
claim or action being barred by prescription
and/or laches cannot be considered favorably.
For, let alone the fact that an action for the
declaration of the inexistence of a contract, as
here, does not prescribe;27 that a void transfer of
property can be recovered by accion
reivindicatoria;28 and that the legal fiction of
indefeasibility of a Torrens title cannot be used
as a shield to perpetuate fraud,29 the trial court’s
disinclination not to appreciate in favor of the
Republic the general principles of prescription or
laches constitutes, at best, errors of judgment
not correctable by certiorari.
The evidence adduced below indeed adequately
supports a conclusion that the Office of the
President, during the administration of then
President Marcos, wrested possession of the
property in question and somehow secured a
certificate of title over it without a conveying
deed having been executed to legally justify the
cancellation of the old title (TCT No. 118527) in
the name of the private respondent and the
issuance of a new one (TCT No. 118911) in the
name of petitioner Republic. Accordingly,
granting private respondent’s basic plea for
recovery of the Arlegui property, which was
legally hers all along, and the reinstatement of
her cancelled certificate of title are legally correct
as they are morally right. While not exactly
convenient because the Office of the President
presently uses it for mix residence and office
purposes, restoring private respondent to her
possession of the Arlegui property is still legally
and physically feasible. For what is before us,
after all, is a registered owner of a piece of land
who, during the early days of the martial law
regime, lost possession thereof to the
Government which appropriated the same for
some public use, but without going through the
legal process of expropriation, let alone paying
such owner just compensation.
The Court cannot, however, stop with just
restoring the private respondent to her
possession and ownership of her property. The
restoration ought to be complemented by some
form of monetary compensation for having been
unjustly deprived of the beneficial use thereof,
but not, however, in the varying amounts and
level fixed in the assailed decision of the trial
court and set to be executed by the equally
assailed writ of execution. The Court finds the
monetary award set forth therein to be
erroneous. And the error relates to basic
fundamentals of law as to constitute grave
abuse of discretion.
As may be noted, private respondent fixed the
assessed value of her Arlegui property at
₱2,388,990.00. And in the prayer portion of her
third amended complaint for recovery, she asked
to be restored to the possession of her property
and that the petitioner be ordered to pay her, as
reasonable compensation or rental use or
occupancy thereof, the sum of ₱500,000.00 a
month, or ₱6 Million a year, with a five percent
(5%) yearly increase plus interest at the legal
rate beginning July 1975. From July 1975 when
the PSG allegedly took over the subject property
to July 2003, a month before the trial court
rendered judgment, or a period of 28 years,
private respondent’s total rental claim would, per
the OSG’s computation, only amount
to ₱371,440,426.00. In its assailed decision,
however, the trial court ordered the petitioner to
pay private respondent the total amount of over
₱1.48 Billion or the mind-boggling amount
of ₱1,480,627,688.00, to be exact, representing
the reasonable rental for the property, the
556 | PART 1 C O N S T I 1 FULLTEXT
interest rate thereon at the legal rate and the
opportunity cost. This figure is on top of
the ₱143,600,000.00 which represents the
acquisition cost of the disputed property. All told,
the trial court would have the Republic pay the
total amount of about ₱1.624 Billion, exclusive
of interest, for the taking of a property with a
declared assessed value of ₱2,388,900.00. This
is not to mention the award of attorney’s fees in
an amount equivalent to 15% of the amount due
the private respondent.
In doing so, the respondent judge brazenly went
around the explicit command of Rule 9, Section
3(d) of the Rules of Court30 which defines the
extent of the relief that may be awarded in a
judgment by default, i.e., only so much as has
been alleged and proved. The court acts in
excess of jurisdiction if it awards an amount
beyond the claim made in the complaint or
beyond that proved by the evidence.31 While a
defaulted defendant may be said to be at the
mercy of the trial court, the Rules of Court and
certainly the imperatives of fair play see to it that
any decision against him must be in accordance
with law.32 In the abstract, this means that the
judgment must not be characterized by
outrageous one-sidedness, but by what is fair,
just and equitable that always underlie the
enactment of a law.
Given the above perspective, the obvious
question that comes to mind is the level of
compensation which – for the use and
occupancy of the Arlegui property - would be fair
to both the petitioner and the private respondent
and, at the same time, be within acceptable legal
bounds. The process of balancing the interests
of both parties is not an easy one. But surely,
the Arlegui property cannot possibly be
assigned, even perhaps at the present real
estate business standards, a monthly rental
value of at least ₱500,000.00 or ₱6,000,000.00
a year, the amount private respondent
particularly sought and attempted to prove. This
asking figure is clearly unconscionable, if not
downright ridiculous, attendant circumstances
considered. To the Court, an award of
₱20,000.00 a month for the use and occupancy
of the Arlegui property, while perhaps a little bit
arbitrary, is reasonable and may be granted pro
hac viceconsidering the following hard realities
which the Court takes stock of:
1. The property is relatively small in
terms of actual area and had an
assessed value of only P2,388,900.00;
2. What the martial law regime took over
was not exactly an area with a new and
imposing structure, if there was any; and
3. The Arlegui property had minimal
rental value during the relatively long
martial law years, given the very
restrictive entry and egress conditions
prevailing at the vicinity at that time and
even after.
To be sure, the grant of monetary award is not
without parallel. In Alfonso v. Pasay City,33 a
case where a registered owner also lost
possession of a piece of lot to a municipality
which took it for a public purposes without
instituting expropriation proceedings or paying
any compensation for the lot, the Court,
citing Herrera v. Auditor General,34ordered
payment of just compensation but in the form of
interest when a return of the property was no
longer feasible.
The award of attorney’s fees equivalent to 15%
of the amount due the private respondent, as
reduced herein, is affirmed.
The assessment of costs of suit against the
petitioner is, however, nullified, costs not being
allowed against the Republic, unless otherwise
provided by law.35
The assailed trial court’s issuance of the writ of
execution36 against government funds to satisfy
its money judgment is also nullified. It is basic
that government funds and properties may not
be seized under writs of execution or
garnishment to satisfy such
judgments.37 Republic v. Palacio38 teaches that a
judgment against the State generally operates
merely to liquidate and establish the plaintiff’s
claim in the absence of express provision;
otherwise, they can not be enforced by
processes of law.
Albeit title to the Arlegui property remains in
the name of the petitioner Republic, it is actually
the Office of the President which has beneficial
possession of and use over it since the 1975
takeover. Accordingly, and in accord with the
elementary sense of justice, it behooves that
office to make the appropriate budgetary
arrangements towards paying private
respondent what is due her under the premises.
This, to us, is the right thing to do. The
imperatives of fair dealing demand no less. And
the Court would be remiss in the discharge of its
duties as dispenser of justice if it does not exhort
the Office of the President to comply with what,
in law and equity, is its obligation. If the same
office will undertake to pay its obligation with
reasonable dispatch or in a manner acceptable
to the private respondent, then simple justice,
while perhaps delayed, will have its day. Private
557 | PART 1 C O N S T I 1 FULLTEXT
respondent is in the twilight of her life, being now
over 90 years of age.39 Any delay in the
implementation of this disposition would be a
bitter cut.
1âw phi 1
respondent, their agents and persons
acting for and in their behalves are
permanently enjoined from enforcing
said writ of execution.

WHEREFORE, the decision of the Regional Trial However, consistent with the basic tenets of
Court of Manila dated August 27, 2003 insofar justice, fairness and equity, petitioner Republic,
as it nullified TCT No. 118911 of petitioner thru the Office of the President, is hereby
Republic of the Philippines and ordered the strongly enjoined to take the necessary steps,
Register of Deeds of Manila to reinstate private and, with reasonable dispatch, make the
respondent Tarcila L. Mendoza’s TCT No. appropriate budgetary arrangements to pay
118527, or to issue her a new certificate of title private respondent Tarcila L. Mendoza or her
is AFFIRMED. Should it be necessary, the assigns the amount adjudged due her under this
Register of Deeds of Manila shall execute the disposition.
necessary conveying deed to effect the
reinstatement of title or the issuance of a new SO ORDERED.
title to her.
CANCIO C. GARCIA
It is MODIFIED in the sense that for the use and Associate Justice
occupancy of the Arlegui property, petitioner
Republic is ordered to pay private respondent
WE CONCUR:
the reasonable amount of ₱20,000.00 a month
beginning July 1975 until it vacates the same
and the possession thereof restored to the REYNATO S. PUNO
private respondent, plus an additional interest of Chief Justice
6% per annum on the total amount due upon the Chairperson
finality of this Decision until the same is fully
paid. Petitioner is further ordered to pay private ANGELINA
RENATO C.
respondent attorney's fees equivalent to 15% of SANDOVAL-
CORONA
the amount due her under the premises. GUTIERREZ
Associate Justice
Associate Justice
Accordingly, a writ of certiorari is hereby
ISSUED in the sense that: ADOLFO S. AZCUNA
Associate Justice
1. The respondent court’s assailed
decision of August 27, 2003 insofar as it CERTIFICATION
ordered the petitioner Republic of the
Philippines to pay private respondent
Pursuant to Section 13, Article VIII of the
Tarcila L. Mendoza the sum of One
Constitution, I certify that the conclusions in the
Billion Four Hundred Eighty Million Six
above decision had been reached in
Hundred Twenty Seven Thousand Six
consultation before the case was assigned to the
Hundred Eighty Eight Pesos
writer of the opinion of the Court’s Division.
(₱1,480,627,688.00) representing the
purported rental use of the property in
question, the interest thereon and the REYNATO S. PUNO
opportunity cost at the rate of 3% per Chief Justice
annum plus the interest at the legal rate
added thereon is nullified. The portion
assessing the petitioner Republic for
costs of suit is also declared null and
void. Footnotes

2. The Order of the respondent court 1

Page 12 of the Decision of the RTC of
dated December 19, 2003 for the Manila, Br. 37; rollo, p. 59.
issuance of a writ of execution and the
Writ of Execution dated December 22, 2
Annex "I," Petition; id. at 77 et seq.
2003 against government funds are
hereby declared null and void. 3
Annex "J," Petition, id. at 93.
Accordingly, the presiding judge of the
respondent court, the private 4
Annex "K," Petition; id. at 94 et seq.
558 | PART 1 C O N S T I 1 FULLTEXT
5
Annex "M," Petition; id. at 108. accident, mistake or excusable
negligence which ordinary prudence
6
Annex "A,’ Petition; id. at 47. could not have guarded against and by
reason of which such aggrieved party
has probably been impaired in his right;
7
Id. at 105.
or (b) Newly discovered evidence ….
8
Id. at 106. 25
Supra note 14.
9
Engr. Hernando Gozon, Jr. of the 26
Rollo, pp. 72-73.
Cuervo Appraisers, Inc.; Mr. Renato
Chico of the Land Bank; and Engr. Israel
Soguilon.
27
Art. 1410, Civil Code.

10
Per Judge Vicente A. Hidalgo; Annex
28
Tolentino, Commentaries and
"B," Petition; rollo, pp. 48 et seq. Jurisprudence on the Civil Code, Vol. IV,
1991 ed., p. 632.
11
Annex "C," Petition; id. at 62 et seq.
Republic v. Court of Appeals, G.R. No.
29

60169, March 23, 1990, 183 SCRA

12
Annex "D," Petition; id. at 70.
1990, citing Acot v. Kempis, 55 O.G.
2907.
13
Annex "E," Petition; id. at 71.
30
(d) Extent of relief to be awarded. - A
14
Annex "F," Petition; id. at 72 et seq. judgment rendered against a party in
default shall not exceed the amount or
15
Annex "G," Petition; id. at 75. different in kind from that prayed for nor
award unliquidated damages.
16
Annex "H," Petition; id. at 76.
31
Regalado, Remedial Law
17
Rollo, p. 341. Compendium, Vol. 1, 8th ed., p. 173,
citing Pascua v. Florendo, L- 38047,
18
Roces v. Aportadera, Adm. Case No. April 30, 1985, 136 SCRA 208.
2936, March 31, 1995, 243 SCRA 108,
citing cases. Lim Tanhu v. Remolete, No. L-40098,
32

August 29, 1975, 66 SCRA 452.

19
First par. of Sec. 3
33
106 Phil. 1017 (1960).
Citibank, N.A. v. Chua, G.R. No.
20

102300, March 17, 1993, 220 SCRA 75. 34

102 Phil. 875 (1958).

21
Lesaca v. Court of Appeals, G.R. No. 35
Sec. 1, Rule 142 of the Rules of Court.
96432, October 21, 1992, 215 SCRA 17,
citing Coombs v. Santos, 24 Phil 446 36
Supra note 16.
(1913).
Commissioner of Public Highways v.
37

Regalado, Remedial Law

22
Compendium, Vol. 1, 8th Revised
Edition, p. 718, citing Benito v.
COMELEC, G.R. No. 134913, Jan. 19,
San Diego, No. L-30098, February 18,
1970, 31 SCRA 616.
No. L-20322, May 29, 1968, 23 SCRA
38

2001, 349 SCRA 705. 899, citing Merritt v. Insular

Government, 34 Phil. 311 (1916).
Olanolan v. COMELEC, G.R. No.
23

165491, March 31, 2005, 454 SCRA 39

See Motion for the Issuance of the
807, citing cases. Writ of Execution, Annex "Q," Petition;
rollo, pp. 134 et seq.
24
Section. 1. Grounds of and period for
filing motion for new trial or
reconsideration. – xxx (a) Fraud,

559 | PART 1 C O N S T I 1 FULLTEXT

 THIRD DIVISION
G.R. No. 104269 November 11, 1993
DEPARTMENT OF AGRICULTURE, petitioner,
vs.
THE NATIONAL LABOR RELATIONS
COMMISSION, et al., respondents.
Roy Lago Salcedo for private respondents.
VITUG, J.:
For consideration are the incidents that flow from
the familiar doctrine of non-suability of the state.
In this petition for certiorari, the Department of
Agriculture seeks to nullify the
Resolution, dated 27 November 1991, of the
1
National Labor Relations Commission (NLRC),
Fifth Division, Cagayan de Oro City, denying the
petition for injunction, prohibition
and mandamus that prays to enjoin permanently
the NLRC's Regional Arbitration Branch X and
Cagayan de Oro City Sheriff from enforcing the
decision of 31 May 1991 of the Executive Labor
2
Arbiter and from attaching and executing on
petitioner's property.
The Department of Agriculture (herein petitioner)
and Sultan Security Agency entered into a
contract on 01 April 1989 for security services to
3
be provided by the latter to the said
governmental entity. Save for the increase in the
monthly rate of the guards, the same terms and
conditions were also made to apply to another
contract, dated 01 May 1990, between the same
parties. Pursuant to their arrangements, guards
were deployed by Sultan Agency in the various
premises of the petitioner.
On 13 September 1990, several guards of the
Sultan Security Agency filed a complaint for
underpayment of wages, non-payment of 13th
month pay, uniform allowances, night shift
differential pay, holiday pay and overtime pay,
as well as for damages, before the Regional
4
Arbitration Branch X of Cagayan de Oro City,
docketed as NLRC Case No. 10-09-00455-90
(or 10-10-00519-90, its original docket number),
against the Department of Agriculture and Sultan
Security Agency.
The Executive Labor Arbiter rendered a decision
on 31 May finding herein petitioner
and jointly and severally liable with Sultan
Security Agency for the payment of money
claims, aggregating P266,483.91, of the
complainant security guards. The petitioner and
Sultan Security Agency did not appeal the
decision of the Labor Arbiter. Thus, the decision
became final and executory.
On 18 July 1991, the Labor Arbiter issued a writ
of execution. commanding the City Sheriff to
5
enforce and execute the judgment against the
property of the two respondents. Forthwith, or on
19 July 1991, the City Sheriff levied on execution
the motor vehicles of the petitioner, i.e. one (1)
unit Toyota Hi-Ace, one (1) unit Toyota Mini
Cruiser, and one (1) unit Toyota Crown. These
6
units were put under the custody of Zacharias
Roa, the property custodian of the petitioner,
pending their sale at public auction or the final
settlement of the case, whichever would come
first.
A petition for injunction, prohibition
and mandamus, with prayer for preliminary writ
of injunction was filed by the petitioner with the
National Labor Relations Commission (NLRC),
Cagayan de Oro, alleging, inter alia, that the writ
issued was effected without the Labor Arbiter
having duly acquired jurisdiction over the
petitioner, and that, therefore, the decision of the
Labor Arbiter was null and void and all actions
pursuant thereto should be deemed equally
invalid and of no legal, effect. The petitioner also
pointed out that the attachment or seizure of its
property would hamper and jeopardize
petitioner's governmental functions to the
prejudice of the public good.
On 27 November 1991, the NLRC promulgated
its assailed resolution; viz:
WHEREFORE, premises
considered, the following orders
are issued:
1. The enforcement and
execution of the judgments
against petitioner in NLRC
RABX Cases Nos. 10-10-
00455-90; 10-10-0481-90 and
10-10-00519-90 are temporarily
suspended for a period of two
(2) months, more or less, but
not extending beyond the last
quarter of calendar year 1991 to
enable petitioner to source and
raise funds to satisfy the
judgment awards against it;
2. Meantime, petitioner is
ordered and directed to source
560 | PART 1 C O N S T I 1 FULLTEXT
for funds within the period
above-stated and to deposit the
sums of money equivalent to the
aggregate amount. it has been
adjudged to pay jointly and
severally with respondent Sultan
Security Agency with the
Regional Arbitration Branch X,
Cagayan de Oro City within the
same period for proper
dispositions;
3. In order to ensure compliance
with this order, petitioner is
likewise directed to put up and
post
sufficient surety and supersedea
s bond equivalent to at least to
fifty (50%) percent of the total
monetary award issued by a
reputable bonding company
duly accredited by the Supreme
Court or by the Regional Trial
Court of Misamis Oriental to
answer for the satisfaction of the
money claims in case of failure
or default on the part of
petitioner to satisfy the money
claims;
4. The City Sheriff is ordered to
immediately release the
properties of petitioner levied on
execution within ten (10) days
from notice of the posting of
sufficient surety or supersedeas
bond as specified above. In the
meanwhile, petitioner is
assessed to pay the costs
and/or expenses incurred by the
City Sheriff, if any, in connection
with the execution of the
judgments in the above-stated
cases upon presentation of the
appropriate claims or vouchers
and receipts by the city Sheriff,
subject to the conditions
specified in the NLRC Sheriff,
subject to the conditions
specified in the NLRC Manual of
Instructions for Sheriffs;
5. The right of any of the
judgment debtors to claim
reimbursement against each
other for any payments made in
connection with the satisfaction
of the judgments herein is
hereby recognized pursuant to
the ruling in the Eagle
Security case, (supra). In case
of dispute between the
judgment debtors, the Executive
Labor Arbiter of the Branch of
origin may upon proper petition
by any of the parties conduct
arbitration proceedings for the
purpose and thereby render his
decision after due notice and
hearings;
7. Finally, the petition for
injunction is Dismissed for lack
of basis. The writ of preliminary
injunction previously issued
is Lifted and Set Aside and in
lieu thereof, a Temporary Stay
of Execution is issued for a
period of two (2) months but not
extending beyond the last
quarter of calendar year 1991,
conditioned upon the posting of
a surety or supersedeas bond
by petitioner within ten (10) days
from notice pursuant to
paragraph 3 of this disposition.
The motion to admit the
complaint in intervention
is Denied for lack of merit while
the motion to dismiss the
petition filed by Duty Sheriff
is Noted
SO ORDERED.
In this petition for certiorari, the petitioner
charges the NLRC with grave abuse of
discretion for refusing to quash the writ of
execution. The petitioner faults the NLRC for
assuming jurisdiction over a money claim
against the Department, which, it claims, falls
under the exclusive jurisdiction of the
Commission on Audit. More importantly, the
petitioner asserts, the NLRC has disregarded
the cardinal rule on the non-suability of the
State.
The private respondents, on the other hand,
argue that the petitioner has impliedly waived its
immunity from suit by concluding a service
contract with Sultan Security Agency.
The basic postulate enshrined in the constitution
that "(t)he State may not be sued without its
consent," reflects nothing less than a
7
recognition of the sovereign character of the
State and an express affirmation of the unwritten
rule effectively insulating it from the jurisdiction
of courts. It is based on the very essence of
8
sovereignty. As has been aptly observed, by
Justice Holmes, a sovereign is exempt from suit,
561 | PART 1 C O N S T I 1 FULLTEXT
not because of any formal conception or
obsolete theory, but on the logical and practical
ground that there can be no legal right as
against the authority that makes the law on
which the right depends. True, the doctrine, not
9
too infrequently, is derisively called "the royal
prerogative of dishonesty" because it grants the
state the prerogative to defeat any legitimate
claim against it by simply invoking its non-
suability. We have had occasion, to explain in
10
its defense, however, that a continued
adherence to the doctrine of non-suability cannot
be deplored, for the loss of governmental
efficiency and the obstacle to the performance of
its multifarious functions would be far greater in
severity than the inconvenience that may be
caused private parties, if such fundamental
principle is to be abandoned and the availability
of judicial remedy is not to be accordingly
restricted. 11
The rule, in any case, is not really absolute for it
does not say that the state may not be sued
under any circumstances. On the contrary, as
correctly phrased, the doctrine only conveys,
"the state may not be sued without its consent;"
its clear import then is that the State may at
times be sued. The States' consent may be
12
given expressly or impliedly. Express consent
may be made through a general law or a 13
special law. In this jurisdiction, the general law
14
waiving the immunity of the state from suit is
found in Act No. 3083, where the Philippine
government "consents and submits to be sued
upon any money claims involving liability arising
from contract, express or implied, which could
serve as a basis of civil action between private
parties." Implied consent, on the other hand, is
15
conceded when the State itself commences
litigation, thus opening itself to a
counterclaim or when it enters into a
16
contract. In this situation, the government is
17
deemed to have descended to the level of the
other contracting party and to have divested
itself of its sovereign immunity. This rule, relied
upon by the NLRC and the private respondents,
is not, however, without qualification. Not all
contracts entered into by the government
operate as a waiver of its non-suability;
distinction must still be made between one which
is executed in the exercise of its sovereign
function and another which is done in its
proprietary capacity. 18
In the Unites States of America vs. Ruiz, where
the questioned transaction dealt with
improvements on the wharves in the naval
installation at Subic Bay, we held:
The traditional rule of immunity
exempts a State from being
sued in the courts of another
State without its consent or
waiver. This rule is a necessary
consequence of the principles of
independence and equality of
States. However, the rules of
International Law are not
petrified; they are constantly
developing and evolving. And
because the activities of states
have multiplied, it has been
necessary to distinguish them
— between sovereign and
governmental acts ( jure imperii)
and private, commercial and
proprietary act ( jure
gestionisis). The result is that
State immunity now extends
only to acts jure imperii. The
restrictive application of State
immunity is now the rule in the
United States, the United
Kingdom and other states in
Western Europe.
xxx xxx xxx
The restrictive application of
State immunity is proper only
when the proceedings arise out
of commercial transactions of
the foreign sovereign, its
commercial activities or
economic affairs. Stated
differently, a state may be said
to have descended to the level
of an individual and can this be
deemed to have actually given
its consent to be sued only
when it enters into business
contracts. It does not apply
where the contracts relates to
the exercise of its sovereign
functions. In this case the
projects are an integral part of
the naval base which is devoted
to the defense of both the
United States and the
Philippines, indisputably a
function of the government of
the highest order; they are not
utilized for not dedicated to
commercial or business
purposes.
19
In the instant case, the Department of
Agriculture has not pretended to have assumed
a capacity apart from its being a governmental
entity when it entered into the questioned
contract; nor that it could have, in fact,
performed any act proprietary in character.
562 | PART 1 C O N S T I 1 FULLTEXT
But, be that as it may, the claims of private general or special law, it may
respondents, i.e. for underpayment of wages, limit the claimant's action "only
holiday pay, overtime pay and similar other up to the completion of
items, arising from the Contract for Service, proceedings anterior to the
clearly constitute money claims. Act No. 3083, stage of execution" and that the
aforecited, gives the consent of the State to be power of the Courts ends when
"sued upon any moneyed claim involving liability the judgment is rendered, since
arising from contract, express or implied, . . . government funds and
Pursuant, however, to Commonwealth Act properties may not be seized
("C.A.") No. 327, as amended by Presidential under writs or execution or
Decree ("P.D.") No. 1145, the money claim first garnishment to satisfy such
be brought to the Commission on Audit. Thus, judgments, is based on obvious
in Carabao, Inc., vs. Agricultural Productivity considerations of public policy.
Commission, we ruled:
20
Disbursements of public funds
must be covered by the
(C)laimants have to prosecute correspondent appropriation as
their money claims against the required by law. The functions
Government under and public services rendered by
Commonwealth Act 327, stating the State cannot be allowed to
that Act 3083 stands now be paralyzed or disrupted by the
merely as the general law diversion of public funds from
waiving the State's immunity their legitimate and specific
from suit, subject to the general objects, as appropriated by
limitation expressed in Section 7 law.23

thereof that "no execution shall

issue upon any judgment WHEREFORE, the petition is GRANTED. The
rendered by any Court against resolution, dated 27 November 1991, is hereby
the Government of the REVERSED and SET ASIDE. The writ of
(Philippines), and that the execution directed against the property of the
conditions provided in Department of Agriculture is nullified, and the
Commonwealth Act 327 for filing public respondents are hereby enjoined
money claims against the permanently from doing, issuing and
Government must be strictly implementing any and all writs of execution
observed." issued pursuant to the decision rendered by the
Labor Arbiter against said petitioner.
We fail to see any substantial conflict or
inconsistency between the provisions of C.A. SO ORDERED.
No. 327 and the Labor Code with respect to
money claims against the State. The Labor Feliciano, Bidin, Romero and Melo, JJ., concur.
code, in relation to Act No. 3083, provides the
legal basis for the State liability but the
prosecution, enforcement or satisfaction thereof
must still be pursued in accordance with the
rules and procedures laid down in C.A. No. 327, # Footnotes
as amended by P.D. 1445.
1 Annex "A", Rollo, 23-52.
When the state gives its consent to be sued, it
does thereby necessarily consent to 2 Annex "C", Ibid., 57-68.
unrestrained execution against it. tersely put,
when the State waives its immunity, all it does, 3 Rollo, 59.
in effect, is to give the other party an opportunity
to prove, if it can, that the State has a 4 Ibid., 57.
liability. In Republic vs. Villasor this Court, in
21 22

nullifying the issuance of an alias writ of

5 Annex "D", Petition, Rollo, 69.
execution directed against the funds of the
Armed Forces of the Philippines to satisfy a final
and executory judgment, has explained, thus — 6 Annex "E", Ibid., ibid., p. 70.

The universal rule that where 7 Article XVI, Section 3 of the

the State gives its consent to be Constitution.
sued by private parties either by
563 | PART 1 C O N S T I 1 FULLTEXT
8 Isagani Cruz, Philippine
Political Law, 1991, p. 29.
9 Kawananakoa vs. Polyblank,
205 U.S. 353, 51 L. ed. 834.
10 U.S.A. vs. Guinto, 182 SCRA
644,654 (1990).
11 Providence Washington Ins.
Co. vs. Republic, 29 SCRA 598
12 Ibid.
23 See also Commissioner of
Public Highways vs. San Diego,
31 SCRA 616
(1970) citing others the following
decisions: Merritt vs.
Government, 34 Phil. 311
(1916); Visayan Refining Co. vs.
Camus, 40 Phil. 550 (1919);
Director of Commerce vs.
Concepcion, 43 Phil. 384
(1922); Belleng vs. Republic, 9
SCRA 6 (1963); Republic vs.
Palacio, 23 SCRA 899 (1968).

13 i.e. Commonwealth Act No.

327, as amended by
Presidential Decree No. 1445
(Sections 49-50), which requires
that all money claims against
the government must first be
filed with the Commission on
Audit which must act upon it
within sixty-days. Rejection of
the claim will authorize the
claimant to elevate the matter to
the Supreme Court
on certiorari and, in effect, sue
the State thereby.

14 Merritt vs. Government of the

Philippines, 34 Phil. 311.

15 See United States vs.

Guinto, 182 SCRA 644,
654, supra.

16 Froilan vs. Pan Oriental

Shipping, G.R. No. 6060, 30
September 1950.

17 Santos vs. Santos, 92 Phil.

281; Lyons vs. United States of
America, 104 SCRA 593.

18 United States of America vs.

Guinto, 182 SCRA 644; United
States of America vs. Ruiz, 136
SCRA 487 (195).

19 136 SCRA 487.

20 35 SCRA 224, 229 (1970).

21 Cruz, supra., 44-45.

22 54 SCRA 84 (1973).

564 | PART 1 C O N S T I 1 FULLTEXT

 FIRST DIVISION
G.R. No. 154411. June 19, 2003
NATIONAL HOUSING AUTHORITY, Petitioner, v. HEIRS OF ISIDRO
GUIVELONDO, court of appeals, HON. ISAIAS DICDICAN, Presiding
Judge, Regional Trial Court, Branch 11, Cebu City, and PASCUAL Y.
ABORDO, Sheriff, Regional Trial Court, Branch 11, Cebu
City, Respondents.
DECISION
YNARES-SANTIAGO, J.:
On February 23, 1999, petitioner National Housing Authority filed with
the Regional Trial Court of Cebu City, Branch 11, an Amended
Complaint for eminent domain against Associacion Benevola de Cebu,
Engracia Urot and the Heirs of Isidro Guivelondo, docketed as Civil
Case No. CEB-23386. Petitioner alleged that defendant Associacion
Benevola de Cebu was the claimant/owner of Lot 108-C located in the
Banilad Estate, Cebu City; that defendant Engracia Urot was the
claimant/owner of Lots Nos. 108-F, 108-I, 108-G, 6019-A and 6013-A,
all of the Banilad Estate; that defendant Heirs of Isidro Guivelondo
were the claimants/owners of Cadastral Lot No. 1613-D located at
Carreta, Mabolo, Cebu City; and that the lands are within a blighted
urban center which petitioner intends to develop as a socialized
housing project.1 cräläwvi rtual ibrä ry
On November 12, 1999, the Heirs of Isidro Guivelondo, respondents
herein, filed a Manifestation stating that they were waiving their
objections to petitioners power to expropriate their properties. Hence,
the trial court issued an Order as follows:
WHEREFORE, the Court hereby declares that the plaintiff has a lawful
right to expropriate the properties of the defendants who are heirs of
Isidro Guivelondo.
The appointment of commissioners who would ascertain and report to
the Court the just compensation for said properties will be done as
soon as the parties shall have submitted to the Court the names of
persons desired by them to be appointed as such commissioners.
SO ORDERED.2 cräläwvirtual ibrä ry
Thereafter, the trial court appointed three Commissioners to ascertain
the correct and just compensation of the properties of respondents. On
April 17, 2000, the Commissioners submitted their report wherein they
recommended that the just compensation of the subject properties be
fixed at P11,200.00 per square meter.3 On August 7, 2000, the trial
court rendered Partial Judgment adopting the recommendation of the
Commissioners and fixing the just compensation of the lands of
respondent Heirs of Isidro Guivelondo at P11,200.00 per square meter,
to wit:
WHEREFORE, in view of the foregoing premises, judgment is hereby
rendered by the Court in this case fixing the just compensation for the
lands of the defendants who are the heirs of Isidro Guivelondo, more
particularly Lots Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16,
19, 20, 6016-F, 6016-H, 6016-E and 6016-D of Csd-10219, which
were sought to be expropriated by the plaintiff at P11,200.00 per
square meter and ordering the plaintiff to pay to the said defendants
the just compensation for the said lands computed at P11,200.00 per
square meter.
IT IS SO ORDERED.4 cräläwvirtua lib räry
Petitioner NHA filed two motions for reconsideration dated August 30,
2000 and August 31, 2000, assailing the inclusion of Lots 12, 13 and
19 as well as the amount of just compensation, respectively.
Respondent Heirs also filed a motion for reconsideration of the Partial
Judgment. On October 11, 2000, the trial court issued an Omnibus
Order denying the motion for reconsideration of respondent Heirs and
the August 31, 2000 motion of petitioner, on the ground that the fixing
of the just compensation had adequate basis and support. On the
other hand, the trial court granted petitioners August 30, 2000 motion
for reconsideration on the ground that the Commissioners Report did
not include Lots 12, 13 and 19 within its coverage. Thus:
WHEREFORE, in view of the foregoing premises, the Court hereby
denies the motion of the heirs of Isidro Guivelondo (with the exception
of Carlota Mercado and Juanita Suemith) for reconsideration of the
partial judgment rendered in this case on August 7, 2000 and plaintiffs
motion for reconsideration of said judgment, dated August 31, 2000.
However, the Court hereby grants the plaintiffs motion for
reconsideration of said judgment, dated August 30, 2000. Accordingly,
the judgment rendered in this case on August 7, 2000 is hereby set
aside insofar as it has fixed just compensations for Lots Nos. 12, 13
and 19 of Csd-10219 because the fixing of said just compensations
appears to lack adequate basis.
SO ORDERED.5 cräläwvirtual ibrä ry
Petitioner filed with the Court of Appeals a petition for certiorari, which
was docketed as CA-G.R. SP No. 61746.6 Meanwhile, on October 31,
2000, the trial court issued an Entry of Judgment over the Partial
Judgment dated August 7, 2000 as modified by the Omnibus Order
dated October 11, 2000.7 Subsequently, respondent Heirs filed a
Motion for Execution, which was granted on November 22, 2000.
On January 31, 2001, the Court of Appeals dismissed the petition for
certiorari on the ground that the Partial Judgment and Omnibus Order
became final and executory when petitioner failed to appeal the
same.8 cräläwvi rtua lib räry
Petitioners Motion for Reconsideration and Urgent Ex-Parte Motion for
a Clarificatory Ruling were denied in a Resolution dated March 18,
2001.9 A petition for review was filed by petitioner with this Court,
which was docketed as G.R. No. 147527. However, the same was
denied in a Minute Resolution dated May 9, 2001 for failure to show
that the Court of Appeals committed a reversible error.10 cräläwvi rt ualib räry
Petitioner filed a Motion for Reconsideration which was however denied
with finality on August 20, 2001.11 cräläwvirtuali brä ry
Prior to the aforesaid denial of the Motion for Reconsideration,
Petitioner, on July 16, 2001, filed with the trial court a Motion to
Dismiss Civil Case No. CEB-23386, complaint for eminent domain,
alleging that the implementation of its socialized housing project was
rendered impossible by the unconscionable value of the land sought to
be expropriated, which the intended beneficiaries can not afford.12 The
Motion was denied on September 17, 2001, on the ground that the
Partial Judgment had already become final and executory and there
was no just and equitable reason to warrant the dismissal of the
case.13 Petitioner filed a Motion for Reconsideration, which was denied
in an Order dated November 20, 2001.14 cräläwvi rt ualib räry
Petitioner thus filed a petition for certiorari with the Court of Appeals,
which was docketed as CA-G.R. SP No. 68670, praying for the
annulment of the Order of the trial court denying its Motion to Dismiss
and its Motion for Reconsideration.15 cräläwvirtuali brä ry
On February 5, 2002, the Court of Appeals summarily dismissed the
petition. Immediately thereafter, respondent Sheriff Pascual Y. Abordo
of the Regional Trial Court of Cebu City, Branch 11, served on
petitioner a Notice of Levy pursuant to the Writ of Execution issued by
the trial court to enforce the Partial Judgment of August 7, 2000 and
the Omnibus Order of October 11, 2000.16 crä läwvirtual ibrä ry
On February 18, 2002, the Court of Appeals set aside the dismissal of
the petition and reinstated the same.17 Thereafter, a temporary
restraining order was issued enjoining respondent sheriff to preserve
the status quo.18 cräläwvi rt ualib räry
On May 27, 2002, respondent sheriff served on the Landbank of the
Philippines a Notice of Third Garnishment against the deposits, moneys
and interests of petitioner therein.19 Subsequently, respondent sheriff
levied on funds and personal properties of petitioner.20 cräläwvi rtua lib räry
On July 16, 2002, the Court of Appeals rendered the assailed decision
dismissing the petition for certiorari.21 cräläwvirt ualib räry
Hence, petitioner filed this petition for review, raising the following
issues:
1) WHETHER OR NOT THE STATE CAN BE COMPELLED AND COERCED
BY THE COURTS TO EXERCISE OR CONTINUE WITH THE EXERCISE OF
ITS INHERENT POWER OF EMINENT DOMAIN;
2) WHETHER OR NOT JUDGMENT HAS BECOME FINAL AND
EXECUTORY AND IF ESTOPPEL OR LACHES APPLIES TO GOVERNMENT;
3) WHETHER OR NOT WRITS OF EXECUTION AND GARNISHMENT MAY
BE ISSUED AGAINST THE STATE IN AN EXPROPRIATION WHEREIN
THE EXERCISE OF THE POWER OF EMINENT DOMAIN WILL NOT SERVE
PUBLIC USE OR PURPOSE {APPLICATION OF SUPREME COURT
ADMINISTRATIVE CIRCULAR NO. 10-2000}.22 cräläwvi rtua lib räry
565 | PART 1 C O N S T I 1 FULLTEXT
Respondent Heirs of Isidro Guivelondo filed their Comment, arguing as
follows:
I Trial Court, no objection to the exercise of the right of condemnation
AS EARLIER UPHELD BY THE HONORABLE COURT, THE JUDGMENT
OF THE TRIAL COURT IS ALREADY FINAL AND EXECUTORY, HENCE,
COULD NO LONGER BE DISTURBED NOR SET ASIDE
II
THE FUNDS AND ASSETS OF THE PETITIONER ARE NOT EXEMPT
FROM LEVY AND GARNISHMENT
III
THE ISSUES RAISED IN THIS SECOND PETITION FOR REVIEW WERE
ALREADY RESOLVED BY THE HONORABLE COURT23 cräläwvi rtua lib räry
In the early case of City of Manila v. Ruymann,24 the Court was
confronted with the question: May the petitioner, in an action for
expropriation, after he has been placed in possession of the property
and before the termination of the action, dismiss the petition? It
resolved the issue in the affirmative and held:
The right of the plaintiff to dismiss an action with the consent of the
court is universally recognized with certain well-defined exceptions. If
the plaintiff discovers that the action which he commenced was
brought for the purpose of enforcing a right or a benefit, the
advisability or necessity of which he later discovers no longer exists, or
that the result of the action would be different from what he had
intended, then he should be permitted to withdraw his action, subject
to the approval of the court. The plaintiff should not be required to
continue the action, subject to some well-defined exceptions, when it
is not to his advantage to do so. Litigation should be discouraged and
not encouraged. Courts should not require parties to litigate when they
no longer desire to do so. Courts, in granting permission to dismiss an
action, of course, should always take into consideration the effect
which said dismissal would have upon the rights of the defendant. 25
Subsequently, in Metropolitan Water District v. De Los Angeles,26 the
Court had occasion to apply the above-quoted ruling when the
petitioner, during the pendency of the expropriation case, resolved
that the land sought to be condemned was no longer necessary in the
maintenance and operation of its system of waterworks. It was held:
It is not denied that the purpose of the plaintiff was to acquire the land
in question for a public use. The fundamental basis then of all actions
brought for the expropriation of lands, under the power of eminent
domain, is public use. That being true, the very moment that it
appears at any stage of the proceedings that the expropriation is not
for a public use, the action must necessarily fail and should be
dismissed, for the reason that the action cannot be maintained at all
except when the expropriation is for some public use. That must be
true even during the pendency of the appeal of at any other stage of
the proceedings. If, for example, during the trial in the lower court, it
should be made to appear to the satisfaction of the court that the
expropriation is not for some public use, it would be the duty and the
obligation of the trial court to dismiss the action. And even during the
pendency of the appeal, if it should be made to appear to the
satisfaction of the appellate court that the expropriation is not for
public use, then it would become the duty and the obligation of the
appellate court to dismiss it.27
cräläwvi rtua lib räry
Notably, the foregoing cases refer to the dismissal of an action for
eminent domain at the instance of the plaintiff during the pendency of
the case. The rule is different where the case had been decided and
the judgment had already become final and executory.
Expropriation proceedings consists of two stages: first, condemnation
of the property after it is determined that its acquisition will be for a
public purpose or public use and, second, the determination of just
compensation to be paid for the taking of private property to be made
by the court with the assistance of not more than three
commissioners.28 Thus:
There are two (2) stages in every action for expropriation. The first is
concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise
in the context of the facts involved in the suit. It ends with an order, if
not of dismissal of the action, of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the filing of the complaint. An order of dismissal, if this be
ordained, would be a final one, of course, since it finally disposes of
the action and leaves nothing more to be done by the Court on the
merits. So, too, would an order of condemnation be a final one, for
thereafter, as the Rules expressly state, in the proceedings before the
(or the propriety thereof) shall be filed or heard.
The second phase of the eminent domain action is concerned with the
determination by the Court of the just compensation for the property
sought to be taken. This is done by the Court with the assistance of
not more than three (3) commissioners. The order fixing the just
compensation on the basis of the evidence before, and findings of, the
commissioners would be final, too. It would finally dispose of the
second stage of the suit, and leave nothing more to be done by the
Court regarding the issue. Obviously, one or another of the parties
may believe the order to be erroneous in its appreciation of the
evidence or findings of fact or otherwise. Obviously, too, such a
dissatisfied party may seek a reversal of the order by taking an appeal
therefrom.29 cräläwvi rtual ibrä ry
The outcome of the first phase of expropriation proceedings, which is
either an order of expropriation or an order of dismissal, is final since it
finally disposes of the case. On the other hand, the second phase ends
with an order fixing the amount of just compensation. Both orders,
being final, are appealable.30 An order of condemnation or dismissal is
final, resolving the question of whether or not the plaintiff has properly
and legally exercised its power of eminent domain.31Once the first
order becomes final and no appeal thereto is taken, the authority to
expropriate and its public use can no longer be questioned.32 cräläwvirtual ibrä ry
The above rule is based on Rule 67, Section 4 of the 1997 Rules of
Civil Procedure, which provides:
Order of expropriation. If the objections to and the defenses against
the right of the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule, the court
may issue an order of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be expropriated, for the
public use or purpose described in the complaint, upon the payment of
just compensation to be determined as of the date of the taking of the
property or the filing of the complaint, whichever came first.
cräläwvirtuali brä ry
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the just compensation to be
paid.
After the rendition of such an order, the plaintiff shall not be permitted
to dismiss or discontinue the proceeding except on such terms as the
court deems just and equitable. (underscoring ours)
In the case at bar, petitioner did not appeal the Order of the trial court
dated December 10, 1999, which declared that it has a lawful right to
expropriate the properties of respondent Heirs of Isidro Guivelondo.
Hence, the Order became final and may no longer be subject to review
or reversal in any court.33 A final and executory decision or order can
no longer be disturbed or reopened no matter how erroneous it may
be. Although judicial determinations are not infallible, judicial error
should be corrected through appeals, not through repeated suits on
the same claim.34 cräläwvirtuali brä ry
Petitioner anchors its arguments on the last paragraph of the above-
quoted Rule 67, Section 4. In essence, it contends that there are just
and equitable grounds to allow dismissal or discontinuance of the
expropriation proceedings. More specifically, petitioner alleges that the
intended public use was rendered nugatory by the unreasonable just
compensation fixed by the court, which is beyond the means of the
intended beneficiaries of the socialized housing project. The argument
is tenuous.
Socialized housing has been recognized as public use for purposes of
exercising the power of eminent domain.
Housing is a basic human need. Shortage in housing is a matter of
state concern since it directly and significantly affects public health,
safety, the environment and in sum, the general welfare. The public
character of housing measures does not change because units in
housing projects cannot be occupied by all but only by those who
satisfy prescribed qualifications. A beginning has to be made, for it is
not possible to provide housing for all who need it, all at once.
xxx xxx xxx.
In the light of the foregoing, this Court is satisfied that socialized
housing falls with the confines of public use. xxx xxx xxx. Provisions
on economic opportunities inextricably linked with low-cost housing, or
566 | PART 1 C O N S T I 1 FULLTEXT
 slum clearance, relocation and resettlement, or slum improvement
emphasize the public purpose of the project.35
The public purpose of the socialized housing project is not in any way
diminished by the amount of just compensation that the court has
fixed. The need to provide decent housing to the urban poor dwellers
in the locality was not lost by the mere fact that the land cost more
than petitioner had expected. It is worthy to note that petitioner
pursued its petition for certiorari with the Court of Appeals assailing
the amount of just compensation and its petition for review with this
Court which eloquently indicates that there still exists a public use for
the housing project. It was only after its appeal and petitions for
review were dismissed that petitioner made a complete turn-around
and decided it did not want the property anymore.
Hence, it is clear that the funds of petitioner NHA are not exempt from
crä läwvirt ualib rä ry garnishment or execution. Petitioners prayer for injunctive relief to
restrain respondent Sheriff Pascual Abordo from enforcing the Notice
of Levy and Garnishment against its funds and properties must,
therefore, be denied.
WHEREFORE, in view of the foregoing, the instant petition for review
is DENIED. The decision of the Court of Appeals in CA-G.R. SP No.
68670, affirming the trial courts Order denying petitioners Motion to
Dismiss the expropriation proceedings in Civil Case No. CEB-23386, is
AFFIRMED. Petitioners prayer for injunctive relief against the levy and
garnishment of its funds and personal properties is DENIED. The
Temporary Restraining Order dated January 22, 2003 is LIFTED.

SO ORDERED.
Respondent landowners had already been prejudiced by the
expropriation case. Petitioner cannot be permitted to institute
condemnation proceedings against respondents only to abandon it Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ.,
later when it finds the amount of just compensation unacceptable. concur.
Indeed, our reprobation in the case of Cosculluela v. Court of
Appeals36 is apropos:

It is arbitrary and capricious for a government agency to initiate

expropriation proceedings, seize a persons property, allow the Endnotes:
judgment of the court to become final and executory and then refuse
to pay on the ground that there are no appropriations for the property 1
Rollo, pp. 72-78.
earlier taken and profitably used. We condemn in the strongest
possible terms the cavalier attitude of government officials who adopt
such a despotic and irresponsible stance. 2
Id., p. 79.

In order to resolve the issue of the propriety of the garnishment 3

Id., pp. 80-89.
against petitioners funds and personal properties, there is a need to
first determine its true character as a government entity. Generally,
4
funds and properties of the government cannot be the object of Id., pp. 90-92; penned by Judge Isaias P. Dicdican.

garnishment proceedings even if the consent to be sued had been

previously granted and the state liability adjudged.37 chan roble svi rtual lawlib rary
5
CA Rollo, pp. 75-76.

The universal rule that where the State gives its consent to be sued by 6
Id., pp. 77-91.
private parties either by general or special law, it may limit claimants
action only up to the completion of proceedings anterior to the stage of
execution and that the power of the Courts ends when the judgment is 7
Id., p. 92.
rendered, since government funds and properties may not be seized
under writs of execution or garnishment to satisfy such judgments, is 8
Id., pp. 97-105; penned by Associate Justice Romeo C. Callejo, Sr. (now a member of this
based on obvious considerations of public policy. Disbursements of Court), concurred in by Associate Justices Renato C. Dacudao and Josefina Guevara-Salonga.
public funds must be covered by the corresponding appropriation as
required by law. The functions and public services rendered by the
State cannot be allowed to be paralyzed or disrupted by the diversion 9
Id., Annex N.
of public funds from their legitimate and specific objects, as
appropriated by law.38 cräläwvirtua lib räry

10
Id., pp. 106-107.

However, if the funds belong to a public corporation or a government- 11

Id., pp. 120-121.
owned or controlled corporation which is clothed with a personality of
its own, separate and distinct from that of the government, then its
funds are not exempt from garnishment.39 This is so because when the 12
Id., pp. 116-119.
government enters into commercial business, it abandons its sovereign
capacity and is to be treated like any other corporation.40 cräläwvi rtua lib räry

13
Id., pp. 21-22.

In the case of petitioner NHA, the matter of whether its funds and 14
Id., pp. 23-24.
properties are exempt from garnishment has already been resolved
squarely against its predecessor, the Peoples Homesite and Housing
Corporation (PHHC), to wit: 15
Id., pp. 3-20.

The plea for setting aside the notice of garnishment was premised on 16
Rollo, pp. 134-135.
the funds of the Peoples Homesite and Housing Corporation deposited
with petitioner being public in character. There was not even a 17
Id., pp. 136-137.
categorical assertion to that effect. It is only the possibility of its being
public in character. The tone was thus irresolute, the approach
diffident. The premise that the funds cold be spoken of as public in 18
Id., pp. 138-139.
character may be accepted in the sense that the Peoples Homesite and
Housing Corporation was a government-owned entity. It does not
follow though that they were exempt from garnishment.41 cräläwvirtu alib räry
19
Id., p. 140.

20
Id., pp. 152-153.
This was reiterated in the subsequent case of Philippine Rock
Industries, Inc. v. Board of Liquidators:42 cräläwvi rt ualib räry

21
Id., pp. 48-58; penned by Associate Justice Remedios A. Salazar-Fernando; concurred in by
Associate Justices Romeo J. Callejo, Sr. and Danilo B. Pine.
Having a juridical personality separate and distinct from the
government, the funds of such government-owned and controlled
22
corporations and non-corporate agency, although considered public in Id., p. 13.

character, are not exempt from garnishment. This doctrine was

applied to suits filed against the Philippine Virginia Tobacco 23
Id., p. 541.
Administration (PNB vs. Pabalan, et al., 83 SCRA 695); the National
Shipyard & Steel Corporation (NASSCO vs. CIR, 118 Phil. 782); the
Manila Hotel Company (Manila Hotel Employees Asso. vs. Manila Hotel 24
37 Phil. 421 [1918].
Co., 73 Phil. 374); and the People's Homesite and Housing
Corporation (PNB vs. CIR, 81 SCRA 314). [emphasis ours]
25
Id., at 424-425.

26
55 Phil. 776 [1931].

567 | PART 1 C O N S T I 1 FULLTEXT

27
Id., at 782.

28
City of Manila v. Serrano, 411 Phil. 754 [2001].

29
Municipality of Bian v. Garcia, G.R. No. 69260, 22 December 1989, 180 SCRA 576.

30
Estate of Salud Jimenez v. Philippine Export Processing Zone, G.R. No. 137285, 16 January
2001, 349 SCRA 240, 253.

31
Heirs of Alberto Suguitan v. City of Mandaluyong, 384 Phil. 676, 692 [2000].

32
Estate of Salud Jimenez v. Philippine Export Processing Zone, supra, at 257.

33
Padillo v. Court of Appeals, G.R. No. 119707, 29 November 2001.

34
Manila Electric Company v. Philippine Consumers Foundation, Inc., G.R. No. 101783, 23
January 2002.

35
Sumulong v. Guerrero, G.R. No. L-48685, 30 September 1987, 154 SCRA 461, 468-469.

36
G.R. No. L-77765, 15 August 1988, 164 SCRA 393, 401.

37
Republic v. Villasor, G.R. No. L-30671, 28 November 1973, 54 SCRA 83, 87; Republic v.
Palacio, 132 Phil. 369 [1968].

38
Commissioner of Public Highways v. San Diego, G.R. No. L-30098, 18 February 1970, 31
SCRA 616, at 625.

39
Philippine National Bank v. Pabalan, G.R. No. L-33112, 15 June 1978, 83 SCRA 595, 598.

40
Rizal Commercial Banking Corporation v. De Castro, G.R. No. L-34548, 29 November 1988,
168 SCRA 49, 60.

41
Philippine National Bank v. CIR, G.R. No. L-32667, 31 January 1978, 81 SCRA 314, 318.

42
G.R. No. 84992, 15 December 1989.

568 | PART 1 C O N S T I 1 FULLTEXT

 SECOND DIVISION
G.R. No. 186192 August 25, 2010
THE HEIRS OF MATEO PIDACAN AND
ROMANA BIGO, NAMELY: PACITA PIDACAN
VDA. DE ZUBIRI AND ADELA PIDACAN VDA.
DE ROBLES, Petitioners,
vs.
AIR TRANSPORTATION OFFICE, represented
by its Acting Director BIENVENIDO
MANGA, Respondent.
DECISION
NACHURA, J.:
Before this Court is a Petition1 for Review
on Certiorari under Rule 45 of the Rules of Civil
Procedure praying that the Orders2 issued by the
Regional Trial Court (RTC) of San Jose,
Occidental Mindoro, Branch 46, dated June 23,
2008 and January 23, 2009, be set aside and
that said RTC be directed to issue a Writ of
Execution enforcing this Court's Decision
in Heirs of Mateo Pidacan and Romana Eigo v.
Air Transportation Office (ATO).3
The facts are summarized as follows:
In 1935, spouses Mateo Pidacan and Romana
Bigo, predecessors-in-interest of petitioners-
heirs namely, Pacita Pidacan Vda. de Zubiri and
Adela Pidacan Vda. de Robles (petitioners),
acquired a parcel of land with an area of about
22 hectares, situated in San Jose, Occidental
Mindoro (the property). Thereafter, Original
Certificate of Title (OCT) No. 2204 was issued in
favor of said spouses.
However, in 1948, respondent Air Transportation
Office (ATO)4 used a portion of the property as
an airport. In 1974, the ATO constructed a
perimeter fence and a new terminal building on
the property. The ATO also lengthened,
widened, and cemented the airport's runway.
Petitioners demanded from ATO the payment of
the value of the property as well as the rentals
for the use thereof but ATO refused. Eventually
in 1988, OCT No. 2204 was cancelled and
Transfer Certificate of Title No. T-7160 was
issued in favor of petitioners. Despite this
development, ATO still refused to pay
petitioners.
Petitioners filed a complaint with the RTC
against ATO for payment of the value of the
property and rentals due thereon. In 1994, the
RTC promulgated a decision, ordering ATO to
pay rentals and the value of the land at ₱89.00
per square meter. ATO appealed to the Court of
Appeals (CA) which remanded the case to the
court a quo for further proceedings. The CA also
held that just compensation should had been
determined as of the time the property was
taken for public use.
On remand, the RTC ruled again in favor of
petitioners, ordering ATO, among others, to pay
petitioners the amount of ₱304.00 per sq m for
the area expropriated or a total of
₱65,584,048.00, imposing interest at the rate of
12% per annum from February 1, 2001 until full
payment, and to pay monthly rentals for the use
and occupation of the property from January 1,
1957 to January 31, 2001, for a total amount of
₱6,249,645.40, with interest at the rate of
12% per annum until the same is fully paid.
Undaunted, the ATO went to the CA, which
again remanded the case to the court a quo for
the determination of just compensation on the
basis of the market value prevailing in 1948.
Petitioners moved for reconsideration, but the
motion was denied. Aggrieved, petitioners filed a
petition for review on certiorari before this Court.
On June 15, 2007, we ruled in favor of
petitioners, holding that ATO's act of converting
petitioners' private property into an airport came
within the purview of eminent domain and as a
consequence, petitioners were completely
deprived of the beneficial use and enjoyment of
their property. We declared that justice and
fairness dictate that the appropriate reckoning
point for the valuation of petitioners' property
was when the RTC made its order of
expropriation in 2001. However, we deleted the
RTC's award of rental payments for lack of
evidence. Thus, we disposed of the case in this
wise:
WHEREFORE, the petition is GRANTED. The
assailed Decision dated August 20, 2003 and
the Resolution dated March 17, 2004 of the
Court of Appeals in CA-G.R. CV No. 72404 are
SET ASIDE. The Decision dated February 1,
2001 of the Regional Trial Court of San Jose,
Occidental Mindoro, Branch 46 in Civil Case No.
R-800 is AFFIRMED with MODIFICATION, as
follows:
1. The actual area occupied by
respondent ATO covered by Transfer
Certificate of Title No. T-7160, totaling
215,737 square meters[,] is declared
expropriated in favor of the ATO.
569 | PART 1 C O N S T I 1 FULLTEXT
 2. The ATO is ordered to pay petitioners
the amount of ₱304.39 per square meter
for the area expropriated, or a total of
₱65,668,185.43 with interest at the rate
of 6% per annum from February 1,
2001, until the same is fully paid.
No pronouncement as to costs.
SO ORDERED.5
On July 10, 2007, ATO filed a Motion for Partial
Reconsideration which we denied with finality in
our Resolution6dated September 12, 2007. On
October 25, 2007, Entry of Judgment7 was
made. Thus, on February 20, 2008, petitioners
filed a Motion for Execution8 before the RTC. On
February 27, 2008, the ATO, through the Office
of the Solicitor General, filed an Opposition9 to
petitioners' Motion.
On June 23, 2008, the RTC issued an Order
denying petitioners' Motion for Execution on the
ground that the prosecution, enforcement, or
satisfaction of State liability must be pursued in
accordance with the rules and procedures laid
down in Commonwealth Act No. 327,10 as
amended by Presidential Decree (P.D.) No.
1445.11 The RTC also relied on this Court's
Administrative Circular No. 10-2000, dated
October 25, 2000, which enjoined all judges to
observe utmost caution, prudence, and
judiciousness in the issuance of writs of
execution to satisfy money judgments against
government agencies and local government
units. Thus, the RTC disposed:
WHEREFORE, foregoing premises considered,
the Motion For the Issuance of a Writ of
Execution filed by the plaintiffs is
hereby DENIED. However, the plaintiffs are
implored to file and pursue their monetary claims
against the government with the Commission on
Audit pursuant to paragraph 4, Section 6 of P.D.
No. 1445 vis-a-vis Rule VIII of [the] 1997 COA
Revised Rules of Procedure.
SO ORDERED.12
Petitioners filed their Motion for
Reconsideration13 which the RTC, however,
denied in its Order dated January 23, 2009.
Hence, this Petition raising the following issues:
1. W[H]ETHER OR NOT
RESPONDENT AIR
TRANSPORTATION OFFICE IS
ALREADY IN LEGAL ESTOPPEL TO
OPPOSE PETITIONERS' MOTION FOR
EXECUTION BECAUSE IT HAS
LITIGATED AND OPPOSED THE
CLAIM OF THE PETITIONERS FROM
THE RTC OF SAN JOSE,
OCCIDENTAL MINDORO, THE COURT
OF APPEALS, AND ALL THE WAY UP
TO THIS HONORABLE COURT[;]
2. WHETHER OR NOT THE FINAL
DECISION OF THIS HONORABLE
COURT CANNOT BE EXECUTED BY
THE TRIAL COURT IN THE LIGHT OF
PARAGRAPH 4, SECTION 6 OF P.D.
NO. 1445 VIS-A-VIS RULE VIII OF THE
1997 COA REVISED RULES OF
PROCEDURE AND ADMINISTRATIVE
CIRCULAR NO. 10-2000, DATED
OCTOBER 25, 2000[; AND]
3. IN THE LIGHT OF THE FINAL
DECISION OF THIS HONORABLE
COURT[,] IS IT NOT THAT
RESPONDENT AIR
TRANSPORTATION OFFICE IS THE
ONE WHO IS LEGALLY BOUND TO
PURSUE AND GET THE MONETARY
CLAIM OF THE PETITIONERS AS
DECIDED BY THIS HONORABLE
COURT FROM OTHER GOVERNMENT
OFFICES[?]14
Petitioners claim that ATO is now in estoppel
because it did not invoke any doctrine which
provides that any decision against ATO cannot
be executed; that Administrative Circular No. 10-
2000 is merely intended to prevent possible
circumvention of Commission on Audit (COA)
rules and regulations which cannot happen in
this case as this Court already decided with
finality on ATO's liability; that said circular only
enjoins judges to observe utmost caution but
does not per se prohibit the issuance of writs of
execution for money claims against the
government;15and that it is incumbent upon the
RTC to direct ATO to look for the necessary
funds in order to satisfy the decision of this
Court. Moreover, petitioners manifest that, on
March 3, 2009, Ruben F. Ciron, Director General
of ATO, wrote petitioners' counsel,16 the
pertinent portions of which state:
This is in connection with your claim for
compensation over the portion of lot occupied by
San Jose Airport subject of the case named
Heirs of Mateo Pidacan, et. al. (Petitioners) v. Air
Transportation Office (Respondent), docketed as
G.R. No. 162779, covered by TCT No. 7160
affecting 215,737 square meters ordering the
defendant to pay the plaintiffs just compensation
with legal interest.
570 | PART 1 C O N S T I 1 FULLTEXT
In this regard, we are pleased to inform you that
the funding for the initial payment for the
acquisition of the above-described lot
encroached by San Jose Airport was earmarked
in the 2007 General Appropriation[s] Act for
ATO-DOTC Infrastructure Program. However, its
release was held by the Department of Budget
and Management (DBM) with the advice to file
the individual claims directly with the
Commission for Adjudication by the Commission
Proper, Commission on Audit, Commonwealth
Avenue, Quezon City on a quantum meruit
basis.17
In its Comment,18 ATO, through the Office of the
Government Corporate Counsel (OGCC),
argues that the RTC faithfully complied with
Administrative Circular No. 10-2000 by not
indiscriminately issuing any writ of execution to
enforce money claims against the government in
accordance with existing jurisprudence and the
provisions of P.D. No. 1445. Section 2619 of P.D.
No. 1445 provides that all money claims against
the government or any of its subdivisions,
agencies, and instrumentalities must be filed
with the COA. The OGCC also submits that
petitioners failed to properly observe the
principle of the hierarchy of courts by directly
filing their Petition before this Court without
raising pure questions of law.
We grant the Petition.
Well-settled in this jurisdiction that the
determination of just compensation is a judicial
prerogative.20 Thus, in Export Processing Zone
Authority v. Judge Dulay,21 we declared:
The determination of "just compensation" in
eminent domain cases is a judicial function. The
1âw phi1
executive department or the legislature may
make the initial determinations but when a party
claims a violation of the guarantee in the Bill of
Rights that private property may not be taken for
public use without just compensation, no statute,
decree, or executive order can mandate that its
own determination shall prevail over the court's
findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed
compensation.
In view of this mandate, this Court has finally
spoken in our Decision on June 15, 2007,
declaring the property to be expropriated in favor
of ATO and ordering the latter to pay petitioners
just compensation. This ruling had already
become final and executory. Our Decision is
clear and unambiguous. Nothing is left to be
done, save for its execution.
Moreover, it bears stressing that the Director
General of ATO informed petitioners that the
funding for the initial payment for the acquisition
of the property was already earmarked in the
2007 General Appropriations Act for ATO-
Department of Transportation and
Communication Infrastructure Program. Under
the circumstances, such earmarking may be
considered as the appropriation required by law
in order that petitioners may be paid just
compensation long due them.
Our ruling in EPG Construction Co. v. Hon.
Vigilar,22 citing Amigable v. Cuenca, etc., et
al.23 and Ministerio, et al. v. CFI of Cebu, etc., et
al.,24 is instructive:
To our mind, it would be the apex of injustice
and highly inequitable for us to defeat
petitioners-contractors' right to be duly
compensated for actual work performed and
services rendered, where both the government
and the public have, for years, received and
accepted benefits from said housing project and
reaped the fruits of petitioners-contractors'
honest toil and labor.
Incidentally, respondent likewise argues that the
State may not be sued in the instant case,
invoking the constitutional doctrine of Non-
suability of the State, otherwise known as
the Royal Prerogative of Dishonesty.
Respondent's argument is misplaced inasmuch
as the Principle of State Immunity finds no
application in the case before us.
Under these circumstances, respondent may not
validly invoke the Royal Prerogative of
Dishonesty and conveniently hide under the
State's cloak of invincibility against suit,
considering that this principle yields to certain
settled exceptions. True enough, the rule, in any
case, is not absolute for it does not say that the
state may not be sued under any circumstance.
Thus, in Amigable v. Cuenca, this Court, in
effect, shred the protective shroud which shields
the State from suit, reiterating our decree in the
landmark case of Ministerio v. CFI of Cebu that
"the doctrine of governmental immunity from suit
cannot serve as an instrument for perpetrating
an injustice on a citizen." It is just as important, if
not more so, that there be fidelity to legal norms
on the part of officialdom if the rule of law were
to be maintained.
Although the Amigable and Ministerio cases
generously tackled the issue of the State's
immunity from suit vis-a-vis the payment of just
571 | PART 1 C O N S T I 1 FULLTEXT
compensation for expropriated property, this ANTONIO T. CARPIO
Court nonetheless finds the doctrine enunciated Associate Justice
in the aforementioned cases applicable to the Chairperson
instant controversy, considering that the ends of
justice would be subverted if we were to uphold, DIOSDADO M.
in this particular instance, the State's immunity ROBERTO A. ABAD
PERALTA
from suit. Associate Justice
1âw phi 1

Associate Justice

To be sure, this Court — as the staunch

guardian of the citizens' rights and welfare — JOSE CATRAL MENDOZA
cannot sanction an injustice so patent on its Associate Justice
face, and allow itself to be an instrument in the
perpetration thereof. Justice and equity sternly ATTESTATION
demand that the State's cloak of invincibility
against suit be shred in this particular instance, I attest that the conclusions in the above
and that petitioners-contractors be duly Decision had been reached in consultation
compensated — on the basis of quantum meruit before the case was assigned to the writer of the
— for construction done on the public works opinion of the Court’s Division.
housing project.
ANTONIO T. CARPIO
It is almost trite to say that execution is the fruit Associate Justice
and the end of the suit and is the life of the law. Chairperson, Second Division
A judgment, if left unexecuted, would be nothing
but an empty victory for the prevailing party. CERTIFICATION
Litigation must end sometime and somewhere.
An effective and efficient administration of justice
Pursuant to Section 13, Article VIII of the
requires that, once a judgment has become final,
Constitution and the Division Chairperson's
the winning party be not deprived of the fruits of
Attestation, I certify that the conclusions in the
the verdict. Courts must, therefore, guard
above Decision had been reached in
against any scheme calculated to bring about
consultation before the case was assigned to the
that result. Constituted as they are to put an end
writer of the opinion of the Court’s Division.
to controversies, courts should frown upon any
attempt to prolong them.25 Petitioners have been
deprived of the beneficial use and enjoyment of RENATO C. CORONA
their property for a considerable length of time. Chief Justice
Now that they prevailed before this Court, it
would be highly unjust and inequitable under the
particular circumstances that payment of just
compensation be withheld from them. We,
therefore, write finis to this litigation. Footnotes

WHEREFORE, the instant Petition 1

Rollo, pp. 9-21.
is GRANTED. The Orders issued by the
Regional Trial Court of San Jose, Occidental 2
Id. at 51-54 and 60-61.
Mindoro, Branch 46, dated June 23, 2008 and
January 23, 2009, are hereby SET ASIDE. The 3
Penned by Senior Associate Justice
said Regional Trial Court is
Leonardo A. Quisumbing (retired), with
hereby DIRECTED to issue a Writ of Execution
Associate Justices Antonio T. Carpio,
enforcing this Court's Decision in Heirs of Mateo
Dante O. Tinga (retired) and Presbitero
Pidacan and Romana Eigo v. Air Transportation
J. Velasco, Jr., concurring; G.R. No.
Office (ATO)26 dated June 15, 2007. No
162779, June 15, 2007, 524 SCRA 679.
pronouncement as to costs.
4
Now known as Civil Aviation Authority
SO ORDERED.
of the Philippines (CAAP).

ANTONIO EDUARDO B. NACHURA 5

Heirs of Mateo Pidacan and Romana
Associate Justice
Eigo v. Air Transportation Office (ATO),
supra note 3, at 688-689.
WE CONCUR:
6
Rollo, p. 35.
572 | PART 1 C O N S T I 1 FULLTEXT
7
Id. at 36-38. funded by donations through the
government, those required to pay
8
Id. at 39-41. levies or government share, and those
for which the government has put up a
counterpart fund or those partly funded
9
Id. at 45-50.
by the government.
10
An Act Fixing the Time Within Which
the Auditor General Shall Render His
20
Ortega v. City of Cebu, G.R. Nos.
181562-63 and 181583-84, October 2,
Decisions and Prescribing the Manner of
2009, 602 SCRA 601, 607-608; Land
Appeal Therefrom.
Bank of the Philippines v. Dumlao, G.R.
No. 167809, November 27, 2008, 572
The Government Auditing Code of the
11
SCRA 108, 122; Land Bank of the
Philippines. Philippines v. Celada, G.R. No. 164876,
January 23, 2006, 479 SCRA 495, 505.
12
Rollo, p. 54.
21
233 Phil. 313, 326 (1987).
13
Id. at 55-57.
22
407 Phil. 53, 64-66 (2001).
14
Supra note 1, at 13.
23
150 Phil. 422 (1972).
15
Id.
24
148-B Phil. 474 (1971).
16
Reply; rollo, pp. 94-97.
25
National Power Corporation v. Omar
17
Annex "A" of Reply. G. Maruhom, Elias G. Maruhom, Bucay
G. Maruhom, Mamod G. Maruhom,
18
Rollo, pp. 77-84. Farouk G. Maruhom, Hidjara G.
Maruhom, Rocania G. Maruhom,
19
SECTION 26. General jurisdiction. − Potrisam G. Maruhom, Lumba G.
The authority and powers of the Maruhom, Sinab G. Maruhom, Acmad
Commission shall extend to and G. Maruhom, Solayman G. Maruhom,
comprehend all matters relating to Mohamad M. Ibrahim, Cairoronesa M.
auditing procedures, systems and Ibrahim, and Lucman Ibrahim,
controls, the keeping of the general represented by his heirs Adora B.
accounts of the Government, the Ibrahim, Nasser B. Ibrahim, Jamalodin
preservation of vouchers pertaining B. Ibrahim, Rajid Nabbel B. Ibrahim,
thereto for a period of ten years, the Ameer B. Ibrahim, and Sarah Aizah B.
examination and inspection of the Ibrahim, G.R. No. 183297, December
books, records, and papers relating to 23, 2009, citing La Campana
those accounts; and the audit and Development Corporation v.
settlement of the accounts of all persons Development Bank of the Philippines,
respecting funds or property received or G.R. No. 146157, February 13, 2009,
held by them in an accountable 579 SCRA 137, 159.
capacity, as well as the examination,
audit, and settlement of all debts and 26
Supra note 3.
claims of any sort due from or owing to
the Government or any of its
subdivisions, agencies and
instrumentalities. The said jurisdiction
extends to all government-owned or
controlled corporations, including their
subsidiaries, and other self-governing
boards, commissions, or agencies of the
Government, and as herein prescribed,
including non-governing boards,
commissions, or agencies of the
Government, and as herein prescribed,
including non-governmental entities
subsidized by the government, those
573 | PART 1 C O N S T I 1 FULLTEXT
 THIRD DIVISION
G.R. No. 163609 November 27, 2008
SPS. BUENAVENTURA JAYME AND ROSARIO
JAYME, petitioners,
vs.
RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO
SIMBULAN, MAYOR FERNANDO Q. MIGUEL,
MUNICIPALITY OF KORONADAL (NOW CITY OF
KORONADAL), PROVINCE OF SOUTH
COTABATO, represented by the MUNICIPAL
TREASURER and/or MUNICIPAL MAYOR
FERNANDO Q. MIGUEL, and THE FIRST
INTEGRATED BONDING AND INSURANCE
COMPANY, INC., respondents.
DECISION
REYES, R.T., J.:
MAY a municipal mayor be held solidarily liable for the
negligent acts of the driver assigned to him, which
resulted in the death of a minor pedestrian?
Challenged in this petition for review on certiorari is
the Decision1 of the Court of Appeals (CA) which
reversed and set aside the decision of the Regional
Trial Court (RTC), Polomolok, Cotabato City, Branch
39, insofar as defendant Mayor Fernando Q. Miguel is
concerned. The CA absolved Mayor Miguel from any
liability since it was not he, but the Municipality of
Koronadal, that was the employer of the negligent
driver.
The Facts
On February 5, 1989, Mayor Miguel of Koronadal,
South Cotabato was on board the Isuzu pick-up truck
driven by Fidel Lozano, an employee of the
Municipality of Koronadal.2 The pick-up truck was
registered under the name of Rodrigo Apostol, but it
was then in the possession of Ernesto
Simbulan.3 Lozano borrowed the pick-up truck from
Simbulan to bring Miguel to Buayan Airport at General
Santos City to catch his Manila flight.4
The pick-up truck accidentally hit Marvin C. Jayme, a
minor, who was then crossing the National Highway in
Poblacion, Polomolok, South Cotabato.5 The intensity
of the collision sent Marvin some fifty (50) meters
away from the point of impact, a clear indication that
Lozano was driving at a very high speed at the time of
the accident.6
Marvin sustained severe head injuries with subdural
hematoma and diffused cerebral contusion.7 He was
initially treated at the Howard Hubbard Memorial
Hospital.8 Due to the seriousness of his injuries, he
was airlifted to the Ricardo Limso Medical Center in
Davao City for more intensive treatment.9 Despite
medical attention, Marvin expired six (6) days after the
accident.10
Petitioners spouses Buenaventura and Rosario
Jayme, the parents of Marvin, filed a complaint for
damages with the RTC against respondents.11 In their
complaint, they prayed that all respondents be held
solidarily liable for their loss. They pointed out that
that proximate cause of Marvin's death was Lozano's
negligent and reckless operation of the vehicle. They
prayed for actual, moral, and exemplary damages,
attorney's fees, and litigation expenses.
In their respective Answers, all respondents denied
liability for Marvin's death. Apostol and Simbulan
averred that Lozano took the pick-up truck without
their consent. Likewise, Miguel and Lozano pointed
out that Marvin's sudden sprint across the highway
made it impossible to avoid the accident. Yet, Miguel
denied being on board the vehicle when it hit Marvin.
The Municipality of Koronadal adopted the answer of
Lozano and Miguel. As for First Integrated Bonding
and Insurance Company, Inc., the vehicle insurer, it
insisted that its liability is contributory and is only
conditioned on the right of the insured. Since the
insured did not file a claim within the prescribed
period, any cause of action against it had prescribed.
RTC Disposition
On January 25, 1999, the RTC rendered judgment in
favor of spouses Jayme, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing, the
defendant Municipality of Koronadal cannot
be held liable for the damages incurred by
other defendant (sic) being an agency of the
State performing a (sic) governmental
functions. The same with defendant
Hermogenes Simbulan, not being the owner
of the subject vehicle, he is absolved of any
liability. The complaint against defendant
First Integrated Bonding Insurance
Company, Inc. is hereby ordered dismissed
there being no cause of action against said
insurance company.
However, defendants Fidel Lozano, Rodrigo
Apostol, and Mayor Fernando Miguel of
Koronadal, South Cotabato, are hereby
ordered jointly and severally to pay the
plaintiff (sic) the following sums:
1. One Hundred Seventy Three
Thousand One Hundred One and
Forty Centavos (P173,101.40)
Pesos as actual damages with legal
interest of 12% per annum
computed from February 11, 1989
until fully paid;
2. Fifty Thousand (P50,000.00)
Pesos as moral damages;
3. Twenty Thousand (P20,000.00)
Pesos as exemplary damages;
574 | PART 1 C O N S T I 1 FULLTEXT
 4. Twenty Thousand (P20,000.00)
Pesos as Attorney's fees;
5. Fifty Thousand (P50,000.00)
Pesos for the death of Marvin
Jayme;
6. Three Thousand (P3,000.00) as
litigation expenses; and
7. To pay the cost of this suit.
SO ORDERED.12
Dissatisfied with the RTC ruling, Mayor Miguel
interposed an appeal to the CA.
CA Disposition
In his appeal, Mayor Miguel contended that the RTC
erred in ruling that he was Lozano's employer and,
hence, solidarily liable for the latter's negligent act.
Records showed that the Municipality of Koronadal
was the driver's true and lawful employer. Mayor
Miguel also denied that he did not exercise due care
and diligence in the supervision of Lozano. The
incident, although unfortunate, was unexpected and
cannot be attributed to him.
On October 22, 2003, the CA granted the appeal,
disposing as follows:
WHEREFORE, the Decision appealed from
is REVERSED and SET ASIDE, insofar as
defendant-appellant Mayor Fernando Q.
Miguel is concerned, and the complaint
against him is DISMISSED.
IT IS SO ORDERED.13
The CA held that Mayor Miguel should not be held
liable for damages for the death of Marvin Jayme.
Said the appellate court:
Moreover, plaintiffs-appellees admitted that
Mayor Miguel was not the employer of
Lozano. Thus, paragraph 9 of the complaint
alleged that the Municipality of Koronadal
was the employer of both Mayor Miguel
and Lozano. Not being the employer of
Lozano, Mayor Miguel could not thus be held
liable for the damages caused by the
former. Mayor Miguel was a mere
passenger in the Isuzu pick-up at the time
of the accident.14 (Emphasis supplied)
The CA also reiterated the settled rule that it is the
registered owner of a vehicle who is jointly and
severally liable with the driver for damages incurred
by passengers or third persons as a consequence of
injuries or death sustained in the operation of the
vehicle.
Issues
The spouses Jayme have resorted to the present
recourse and assign to the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT MAYOR
FERNANDO MIGUEL CANNOT BE HELD
LIABLE FOR THE DEATH OF MARVIN
JAYME WHICH CONCLUSION IS
CONTRARY TO LAW AND THE SETTLED
PRONOUNCEMENTS OF THIS
HONORABLE TRIBUNAL;
II.
THE FINDINGS OF FACTS OF THE
HONORABLE COURT OF APPEALS ARE
CONTRARY TO THE FINDINGS OF THE
TRIAL COURT AND ARE CONTRADICTED
BY THE EVIDENCE ON RECORD;
MOREOVER, THE CONCLUSIONS
DRAWN BY THE HONORABLE COURT OF
APPEALS ARE ALL BASED ON
CONJECTURES AND SURMISES AND
AGAINST ACCEPTED COURSE OF
JUDICIAL PROCEEDINGS WHICH
URGENTLY CALL FOR AN EXERCISE OF
THIS HONORABLE COURT'S
SUPERVISION.15
Our Ruling
The doctrine of vicarious liability or imputed
liability finds no application in the present case.
Spouses Jayme contend, inter alia, that vicarious
liability attaches to Mayor Miguel. He was not a mere
passenger, but instead one who had direct control
and supervision over Lozano during the time of the
accident. According to petitioners, the element of
direct control is not negated by the fact that Lozano's
employer was the Municipality of Koronadal. Mayor
Miguel, being Lozano's superior, still had control over
the manner the vehicle was operated.
Article 218016 of the Civil Code provides that a person
is not only liable for one's own quasi-delictual acts,
but also for those persons for whom one is
responsible for. This liability is popularly known as
vicarious or imputed liability. To sustain claims against
employers for the acts of their employees, the
following requisites must be established: (1) That the
employee was chosen by the employer personally or
through another; (2) That the service to be rendered
in accordance with orders which the employer has the
authority to give at all times; and (3) That the illicit act
of the employee was on the occasion or by reason of
the functions entrusted to him.17
Significantly, to make the employee liable under
paragraphs 5 and 6 of Article 2180, it must be
established that the injurious or tortuous act was
575 | PART 1 C O N S T I 1 FULLTEXT
committed at the time the employee was performing
his functions.18
Furthermore, the employer-employee relationship
cannot be assumed. It is incumbent upon the plaintiff
to prove the relationship by preponderant evidence.
In Belen v. Belen,19 this Court ruled that it was enough
for defendant to deny an alleged employment
relationship. The defendant is under no obligation to
prove the negative averment. This Court said:
It is an old and well-settled rule of the courts
that the burden of proving the action is upon
the plaintiff, and that if he fails satisfactorily
to show the facts upon which he bases his
claim, the defendant is under no obligation to
prove his exceptions. This rue is in harmony
with the provisions of Section 297 of the
Code of Civil Procedure holding that each
party must prove his own affirmative
allegations, etc.20
In resolving the present controversy, it is imperative to
find out if Mayor Miguel is, indeed, the employer of
Lozano and therefore liable for the negligent acts of
the latter. To determine the existence of an
employment relationship, We rely on the four-fold test.
This involves: (1) the employer's power of selection;
(2) payment of wages or other remuneration; (3) the
employer's right to control the method of doing the
work; and (4) the employer's right of suspension or
dismissal.21
Applying the foregoing test, the CA correctly held that
it was the Municipality of Koronadal which was the
lawful employer of Lozano at the time of the accident.
It is uncontested that Lozano was employed as a
driver by the municipality. That he was subsequently
assigned to Mayor Miguel during the time of the
accident is of no moment. This Court has, on several
occasions, held that an employer-employee
relationship still exists even if the employee was
loaned by the employer to another person or entity
because control over the employee subsists.22 In the
case under review, the Municipality of Koronadal
remains to be Lozano's employer notwithstanding
Lozano's assignment to Mayor Miguel.
Spouses Jayme argued that Mayor Miguel had at
least supervision and control over Lozano and how
the latter operated or drove the Isuzu pick-up during
the time of the accident. They, however, failed to
buttress this claim.
Even assuming arguendo that Mayor Miguel had
authority to give instructions or directions to Lozano,
he still can not be held liable. In Benson v.
Sorrell,23 the New England Supreme Court ruled that
mere giving of directions to the driver does not
establish that the passenger has control over the
vehicle. Neither does it render one the employer of
the driver. This Court, in Soliman, Jr. v.
Tuazon,24 ruled in a similar vein, to wit:
x x x The fact that a client company may give
instructions or directions to the security
guards assigned to it, does not, by
itself, render the client responsible as an
employer of the security guards concerned
and liable for their wrongful acts and
omissions. Those instructions or directions
are ordinarily no more than requests
commonly envisaged in the contract for
services entered into with the security
agency. x x x25 (Emphasis supplied)
Significantly, no negligence may be imputed against a
fellow employee although the person may have the
right to control the manner of the vehicle's
operation.26 In the absence of an employer-employee
relationship establishing vicarious liability, the driver's
negligence should not be attributed to a fellow
employee who only happens to be an occupant of the
vehicle.27Whatever right of control the occupant may
have over the driver is not sufficient by itself to justify
an application of the doctrine of vicarious
liability. Handley v. Lombardi28 is instructive on this
exception to the rule on vicarious liability:
Plaintiff was not the master or principal of the
driver of the truck, but only an intermediate
and superior employee or agent. This being
so, the doctrine of respondeat superior or qui
facit per alium is not properly applicable to
him. His power to direct and control the
driver was not as master, but only by virtue
of the fact that they were both employed by
Kruse, and the further fact that as Kruse's
agent he was delegated Kruse's authority
over the driver. x x x
In the case of actionable negligence, the rule
is well settled both in this state and
elsewhere that the negligence of a
subordinate employee or subagent is not to
be imputed to a superior employee or agent,
but only to the master or principal. (Hilton v.
Oliver, 204 Cal. 535 [61 A. L. R. 297, 269
Pac. 425; Guild v. Brown, 115 Cal. App. 374
[1 Pac. (2d) 528; Ellis v. Southern Ry. Co.,
72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E.
228; Thurman v. Pittsburg & M. Copper Co.,
41 Mont. 141 [108 Pac. 588]; 2 Cor. Jur., p.
829; and see the elaborate note in 61 A. L.
R. 277, and particularly that part
commencing at p. 290.) We can see no
logical reason for drawing any distinction in
this regard between actionable negligence
and contributory negligence. x x x29
The rule was reiterated in Bryant v. Pacific Elec. Ry.
Co.[30 and again in Sichterman v. Hollingshead Co.31
In Swanson v. McQuown,32 a case involving a military
officer who happened to be riding in a car driven by a
subordinate later involved in an accident, the
Colorado Supreme Court adhered to the general rule
that a public official is not liable for the wrongful acts
of his subordinates on a vicarious basis since the
relationship is not a true master-servant
situation.33 The court went on to rule that the only
exception is when they cooperate in the act
complained of, or direct or encourage it.34
576 | PART 1 C O N S T I 1 FULLTEXT
In the case at bar, Mayor Miguel was neither Lozano's vehicle are liable for the death of a third person
employer nor the vehicle's registered owner. There resulting from the negligent operation of the vehicle.
existed no causal relationship between him and
Lozano or the vehicle used that will make him WHEREFORE, the petition is DENIED and the
accountable for Marvin's death. Mayor Miguel was a appealed Decision AFFIRMED.
mere passenger at the time of the accident.
SO ORDERED.
Parenthetically, it has been held that the failure of a
passenger to assist the driver, by providing him
warnings or by serving as lookout does not make the RUBEN T. REYES
passenger liable for the latter's negligent acts.35 The Associate Justice
driver's duty is not one that may be delegated to
others.36

As correctly held by the trial court, the true and lawful

employer of Lozano is the Municipality of Koronadal. WE CONCUR:
Unfortunately for Spouses Jayme, the municipality
may not be sued because it is an agency of the State
engaged in governmental functions and, hence, CONSUELO YNARES-SANTIAGO
immune from suit. This immunity is illustrated Associate Justice
in Municipality of San Fernando, La Union v. Chairperson
Firme,37 where this Court held:
MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO
It has already been remarked that municipal Associate Justice Associate Justice
corporations are suable because their
charters grant them the competence to sue ANTONIO EDUARDO B. NACHURA
and be sued. Nevertheless, they are Associate Justice
generally not liable for torts committed by
them in the discharge of governmental
functions and can only be held answerable
only if it can be shown that they were acting
in proprietary capacity. In permitting such ATTESTATION
entities to be sued, the State merely gives
the claimant the right to show that the I attest that the conclusions in the above Decision had
defendant was not acting in governmental been reached in consultation before the case was
capacity when the injury was committed or assigned to the writer of the opinion of the Court's
that the case comes under the exceptions Division.
recognized by law. Failing this, the claimant
cannot recover.38
CONSUELO YNARES-SANTIAGO
Associate Justice
Verily, liability attaches to the registered owner, the Chairperson
negligent driver and his direct employer. The CA
observation along this line are worth restating:

Settled is the rule that the registered owner

of a vehicle is jointly and severally liable with
the driver for damages incurred by
passengers and third persons as a
consequence of injuries or death sustained
in the operation of said vehicles. Regardless
of who the actual owner of the vehicle is, the
operator of record continues to be the
operator of the vehicle as regards the public
and third persons, and as such is directly
and primarily responsible for the
consequences incident (sic) to its operation x
x x.39
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution
and the Division Chairperson's Attestation, 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's Division.
REYNATO S. PUNO
Chief Justice

The accidental death of Marvin Jayme is a tragic loss

for his parents. However, justice demands that only
those liable under our laws be held accountable for
Marvin's demise. Justice can not sway in favor of Footnotes
petitioners simply to assuage their pain and loss. The
law on the matter is clear: only the negligent driver, 1Rollo, pp. 45-51. Dated April 16, 2004.
the driver's employer, and the registered owner of the Penned by Associate Justice Marina L.

577 | PART 1 C O N S T I 1 FULLTEXT

Buzon, with Associate Justices Sergio L. employees and household helpers
Pestaño and Jose C. Mendoza, concurring. acting within the scope of their
assigned tasks, even though the
2
Id. at 46. former are not engaged in any
business or industry.
3 Id.
The State is responsible in like
4
manner when it acts through a
Id. special agent; but not when the
damage has been caused by the
5 official to whom the task done
CA rollo, p. 53.
properly pertains, in which case
6 Id. what is provided in Article 2176
shall be applicable.
7 Id.
Lastly, teachers or heads of
establishments of arts and trades
8 Id. shall be liable for damages caused
by their pupils and students or
9 Id. apprentices, so long as they remain
in their custody.
10 Id.
The responsibility treated of in this
11 article shall cease when the
Rollo, p. 46.
persons herein mentioned prove
that they observed all the diligence
12 Id. at 48. of a good father of a family to
prevent damage.
13 Id. at 50.
17Cammarota, 449, cited in Tolentino, Civil
14 Id. at 44. Code of the Philippines, Vol. V, p. 522.

15 Id. at 23-24.
16 Civil Code, Art. 2180 provides:
Art. 2180. The obligation imposed
by Article 2176 is demandable for
one's own acts or omissions, but
also for those of persons for whom
one is responsible.
The father, and in case of his death
or incapacity, the mother, are
responsible for the damages
caused by the minor children who
live in their company.
Guardians are liable for damages
caused by the minors or
incapacitated persons who are
under their authority and live in their
company.
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which the
latter are employed or on the
occasion of their functions.
Employers shall be liable for the
damages caused by their
18
Marquez v. Castillo, 68 Phil. 568 (1939);
Cerf v. Medel, 33 Phil. 37 (1915).
19 13 Phil. 202 (1909).
20
Belen v. Belen, id. at 206.
21Coca-Cola Bottlers (Phils.), Inc. v.
Climaco, G.R. No. 146881, February 5,
2007, 514 SCRA 164; Ecal v. National Labor
Relations Commission, G.R. Nos. 92777-78,
March 13, 1991, 195 SCRA 224; Social
Security System v. Court of Appeals, G. R.
No. L-28134, June 30, 1971, 39 SCRA
629; Brotherhood Labor Unity Movement v.
Zamora, G.R. No. L-48645, January 7, 1987,
147 SCRA 49.
22
Rhone-Poulenc Agrochemicals, Phil.,
Incorporated v. National Labor Relations
Commission, G.R. Nos. 102633-65, January
19, 1993, 217 SCRA 249.
23
627 NE 2d 866 (Ind. Ct. App. 5th Dist.,
1994).
24G.R. No. 66207, May 18, 1992, 209 SCRA
47.
25 Soliman, Jr. v. Tuazon, id. at 51.
26 § 796, 8 Am. Jur. 2d.
578 | PART 1 C O N S T I 1 FULLTEXT
27Handley v. Lombardi, 122 Cal. App. 22, 9
P. 2d 867 (1st Dist. 1932); Swanson v.
McQuown, 139 Colo. 442, 340 P. 2d. 1063
(1959); Nadeau v. Melin, 260 Minn. 369, 110
NW 2d 29 (1961); Vogler v. Jones, 199 Okla.
156, 186 P. 2d 315 (1947); Siburg v.
Johnson, 249 Or. 556, 439 P. 2d 865 (1968);
Veek v. Tacoma Suburban Lines, Inc., 49
Wash. 2d 584, 304 P. 2d 700 (1956).

28 Id.

29 Handley v. Lombardi, id. at 869.

30 174 Cal. 737 [164 Pac. 385].

31 94 Cal. App. 486, [271 Pac. 372, 1111].

32
Supra.

33Citing 38 Am. Jur. 921, 922, Sec. 235,

Negligence. Dowler v. Johnson, 225 N.Y. 39,
121 NE 487, 3 A.L.R. 146.

34Lane v. Cotton, 1 Ld. Raym. 646, 91 Eng.

Reprint 1332; Bailey v. Mayor, etc. of City of
New York, 3 Hill 531, 538, 38 Am. Dec. 669;
Cardot v. Barney, 63 N.Y. 281, 20 Am. Rep.
533; Robertson v. Sichel, 127 US 507, 8 S.
Ct. 1286, 32 L. Ed. 203; Ely v. Parsons, 55
Conn. 83, 10 A. 499; Story, Agency, § 319.

35 8 Am. Jur. 2d 694.

36Capretz v. Chicago Great Western R. Co.,

157 Minn. 29, 195 NW 531 (1923).

37G.R. No. 52179, April 8, 1991, 195 SCRA

692.

38 Municipality of San Fernando, La Union v.

Firme, id. at 698.

39 Rollo, p. 249.

579 | PART 1 C O N S T I 1 FULLTEXT

 THIRD DIVISION
G.R. No. 168289 March 22, 2010
THE MUNICIPALITY OF HAGONOY,
BULACAN, represented by the HON. FELIX V.
OPLE, Municipal Mayor, and FELIX V. OPLE,
in his personal capacity, Petitioners,
vs.
HON. SIMEON P. DUMDUM, JR., in his
capacity as the Presiding Judge of the
REGIONAL TRIAL COURT, BRANCH 7, CEBU
CITY; HON. CLERK OF COURT & EX-OFFICIO
SHERIFF of the REGIONAL TRIAL COURT of
CEBU CITY; HON. CLERK OF COURT & EX-
OFFICIO SHERIFF of the REGIONAL TRIAL
COURT of BULACAN and his DEPUTIES; and
EMILY ROSE GO KO LIM CHAO, doing
business under the name and style KD
SURPLUS, Respondents.
DECISION
PERALTA, J.:
This is a Joint Petition1 under Rule 45 of the
Rules of Court brought by the Municipality of
Hagonoy, Bulacan and its former chief
executive, Mayor Felix V. Ople in his official and
personal capacity, from the January 31, 2005
Decision2 and the May 23, 2005 Resolution3 of
the Court of Appeals in CA-G.R. SP No. 81888.
The assailed decision affirmed the October 20,
2003 Order4 issued by the Regional Trial Court
of Cebu City, Branch 7 in Civil Case No. CEB-
28587 denying petitioners’ motion to dismiss and
motion to discharge/dissolve the writ of
preliminary attachment previously issued in the
case. The assailed resolution denied
reconsideration.
The case stems from a Complaint5 filed by
herein private respondent Emily Rose Go Ko
Lim Chao against herein petitioners, the
Municipality of Hagonoy, Bulacan and its chief
executive, Felix V. Ople (Ople) for collection of a
sum of money and damages. It was alleged that
sometime in the middle of the year 2000,
respondent, doing business as KD Surplus and
as such engaged in buying and selling surplus
trucks, heavy equipment, machinery, spare parts
and related supplies, was contacted by petitioner
Ople. Respondent had entered into an
agreement with petitioner municipality through
Ople for the delivery of motor vehicles, which
supposedly were needed to carry out certain
developmental undertakings in the municipality.
Respondent claimed that because of Ople’s
earnest representation that funds had already
been allocated for the project, she agreed to
deliver from her principal place of business in
Cebu City twenty-one motor vehicles whose
value totaled ₱5,820,000.00. To prove this, she
attached to the complaint copies of the bills of
lading showing that the items were consigned,
delivered to and received by petitioner
municipality on different dates.6 However,
despite having made several deliveries, Ople
allegedly did not heed respondent’s claim for
payment. As of the filing of the complaint, the
total obligation of petitioner had already totaled
₱10,026,060.13 exclusive of penalties and
damages. Thus, respondent prayed for full
payment of the said amount, with interest at not
less than 2% per month, plus ₱500,000.00 as
damages for business losses, ₱500,000.00 as
exemplary damages, attorney’s fees of
₱100,000.00 and the costs of the suit.
On February 13, 2003, the trial court issued an
Order7 granting respondent’s prayer for a writ of
preliminary attachment conditioned upon the
posting of a bond equivalent to the amount of
the claim. On March 20, 2003, the trial court
issued the Writ of Preliminary
Attachment8 directing the sheriff "to attach the
estate, real and personal properties" of
petitioners.
Instead of addressing private respondent’s
allegations, petitioners filed a Motion to
Dismiss9 on the ground that the claim on which
the action had been brought was unenforceable
under the statute of frauds, pointing out that
there was no written contract or document that
would evince the supposed agreement they
entered into with respondent. They averred that
contracts of this nature, before being undertaken
by the municipality, would ordinarily be subject
to several preconditions such as a public bidding
and prior approval of the municipal council
which, in this case, did not obtain. From this,
petitioners impress upon us the notion that no
contract was ever entered into by the local
government with respondent.10 To address the
claim that respondent had made the deliveries
under the agreement, they advanced that the
bills of lading attached to the complaint were
hardly probative, inasmuch as these documents
had been accomplished and handled exclusively
by respondent herself as well as by her
employees and agents.11
Petitioners also filed a Motion to Dissolve and/or
Discharge the Writ of Preliminary Attachment
Already Issued,12invoking immunity of the state
from suit, unenforceability of the contract, and
failure to substantiate the allegation of fraud.13
On October 20, 2003, the trial court issued an
Order14 denying the two motions. Petitioners
580 | PART 1 C O N S T I 1 FULLTEXT
moved for reconsideration, but they were denied
in an Order15 dated December 29, 2003.
Believing that the trial court had committed
grave abuse of discretion in issuing the two
orders, petitioners elevated the matter to the
Court of Appeals via a petition
for certiorari under Rule 65. In it, they faulted the
trial court for not dismissing the complaint
despite the fact that the alleged contract was
unenforceable under the statute of frauds, as
well as for ordering the filing of an answer and in
effect allowing private respondent to prove that
she did make several deliveries of the subject
motor vehicles. Additionally, it was likewise
asserted that the trial court committed grave
abuse of discretion in not discharging/dissolving
the writ of preliminary attachment, as prayed for
in the motion, and in effect disregarding the rule
that the local government is immune from suit.
On January 31, 2005, following assessment of
the parties’ arguments, the Court of Appeals,
finding no merit in the petition, upheld private
respondent’s claim and affirmed the trial court’s
order.16 Petitioners moved for reconsideration,
but the same was likewise denied for lack of
merit and for being a mere scrap of paper for
having been filed by an unauthorized
counsel.17 Hence, this petition.
In their present recourse, which raises no matter
different from those passed upon by the Court of
Appeals, petitioners ascribe error to the Court of
Appeals for dismissing their challenge against
the trial court’s October 20 and December 29,
2003 Orders. Again, they reason that the
complaint should have been dismissed at the
first instance based on unenforceability and that
the motion to dissolve/discharge the preliminary
attachment should have been granted.18
Commenting on the petition, private respondent
notes that with respect to the Court of Appeals’
denial of the certiorari petition, the same was
rightly done, as the fact of delivery may be
properly and adequately addressed at the trial of
the case on the merits; and that the dissolution
of the writ of preliminary attachment was not
proper under the premises inasmuch as the
application for the writ sufficiently alleged fraud
on the part of petitioners. In the same breath,
respondent laments that the denial of petitioners’
motion for reconsideration was rightly done by
the Court of Appeals, because it raised no new
matter that had not yet been addressed.19
After the filing of the parties’ respective
memoranda, the case was deemed submitted
for decision.
We now rule on the petition.
To begin with, the Statute of Frauds found in
paragraph (2), Article 1403 of the Civil
Code,20 requires for enforceability certain
contracts enumerated therein to be evidenced
by some note or memorandum. The term
"Statute of Frauds" is descriptive of statutes that
require certain classes of contracts to be in
writing; and that do not deprive the parties of the
right to contract with respect to the matters
therein involved, but merely regulate the
formalities of the contract necessary to render it
enforceable.21
In other words, the Statute of Frauds only lays
down the method by which the enumerated
contracts may be proved. But it does not declare
them invalid because they are not reduced to
writing inasmuch as, by law, contracts are
obligatory in whatever form they may have been
entered into, provided all the essential requisites
for their validity are present.22 The object is to
prevent fraud and perjury in the enforcement of
obligations depending, for evidence thereof, on
the unassisted memory of witnesses by requiring
certain enumerated contracts and transactions
to be evidenced by a writing signed by the party
to be charged.23 The effect of noncompliance
with this requirement is simply that no action can
be enforced under the given contracts.24 If an
action is nevertheless filed in court, it shall
warrant a dismissal under Section 1(i),25 Rule 16
of the Rules of Court, unless there has been,
among others, total or partial performance of the
obligation on the part of either party.26
It has been private respondent’s consistent
stand, since the inception of the instant case that
she has entered into a contract with petitioners.
As far as she is concerned, she has already
performed her part of the obligation under the
agreement by undertaking the delivery of the 21
motor vehicles contracted for by Ople in the
name of petitioner municipality. This claim is well
substantiated — at least for the initial purpose of
setting out a valid cause of action against
petitioners — by copies of the bills of lading
attached to the complaint, naming petitioner
municipality as consignee of the shipment.
Petitioners have not at any time expressly
denied this allegation and, hence, the same is
binding on the trial court for the purpose of ruling
on the motion to dismiss. In other words, since
there exists an indication by way of allegation
that there has been performance of the
obligation on the part of respondent, the case is
excluded from the coverage of the rule on
dismissals based on unenforceability under the
statute of frauds, and either party may then
enforce its claims against the other.
581 | PART 1 C O N S T I 1 FULLTEXT
No other principle in remedial law is more settled
than that when a motion to dismiss is filed, the
material allegations of the complaint are deemed
to be hypothetically admitted.27 This hypothetical
admission, according to Viewmaster
Construction Corporation v. Roxas28 and Navoa
v. Court of Appeals,29 extends not only to the
relevant and material facts well pleaded in the
complaint, but also to inferences that may be
fairly deduced from them. Thus, where it
appears that the allegations in the complaint
furnish sufficient basis on which the complaint
can be maintained, the same should not be
dismissed regardless of the defenses that may
be raised by the defendants.30 Stated differently,
where the motion to dismiss is predicated on
grounds that are not indubitable, the better
policy is to deny the motion without prejudice to
taking such measures as may be proper to
assure that the ends of justice may be served.31
It is interesting to note at this point that in their
bid to have the case dismissed, petitioners
theorize that there could not have been a
contract by which the municipality agreed to be
bound, because it was not shown that there had
been compliance with the required bidding or
that the municipal council had approved the
contract. The argument is flawed. By invoking
unenforceability under the Statute of Frauds,
petitioners are in effect acknowledging the
existence of a contract between them and
private respondent — only, the said contract
cannot be enforced by action for being non-
compliant with the legal requisite that it be
reduced into writing. Suffice it to say that while
this assertion might be a viable defense against
respondent’s claim, it is principally a matter of
evidence that may be properly ventilated at the
trial of the case on the merits.
Verily, no grave abuse of discretion has been
committed by the trial court in denying
petitioners’ motion to dismiss this case. The
Court of Appeals is thus correct in affirming the
same.
We now address the question of whether there
is a valid reason to deny petitioners’ motion to
discharge the writ of preliminary attachment.
Petitioners, advocating a negative stance on this
issue, posit that as a municipal corporation, the
Municipality of Hagonoy is immune from suit,
and that its properties are by law exempt from
execution and garnishment. Hence, they submit
that not only was there an error committed by
the trial court in denying their motion to dissolve
the writ of preliminary attachment; they also
advance that it should not have been issued in
the first place. Nevertheless, they believe that
respondent has not been able to substantiate
her allegations of fraud necessary for the
issuance of the writ.32
Private respondent, for her part, counters that,
contrary to petitioners’ claim, she has amply
discussed the basis for the issuance of the writ
of preliminary attachment in her affidavit; and
that petitioners’ claim of immunity from suit is
negated by Section 22 of the Local Government
Code, which vests municipal corporations with
the power to sue and be sued. Further, she
contends that the arguments offered by
petitioners against the writ of preliminary
attachment clearly touch on matters that when
ruled upon in the hearing for the motion to
discharge, would amount to a trial of the case on
the merits.33
The general rule spelled out in Section 3, Article
XVI of the Constitution is that the state and its
political subdivisions may not be sued without
their consent. Otherwise put, they are open to
suit but only when they consent to it. Consent is
implied when the government enters into a
business contract, as it then descends to the
level of the other contracting party; or it may be
embodied in a general or special law34 such as
that found in Book I, Title I, Chapter 2, Section
22 of the Local Government Code of 1991,
which vests local government units with certain
corporate powers —one of them is the power to
sue and be sued.
Be that as it may, a difference lies between
suability and liability. As held in City of Caloocan
v. Allarde,35 where the suability of the state is
conceded and by which liability is ascertained
judicially, the state is at liberty to determine for
itself whether to satisfy the judgment or not.
Execution may not issue upon such judgment,
because statutes waiving non-suability do not
authorize the seizure of property to satisfy
judgments recovered from the action. These
statutes only convey an implication that the
legislature will recognize such judgment as final
and make provisions for its full satisfaction.
Thus, where consent to be sued is given by
general or special law, the implication thereof is
limited only to the resultant verdict on the action
before execution of the judgment.36
Traders Royal Bank v. Intermediate Appellate
Court,37 citing Commissioner of Public Highways
v. San Diego,38 is instructive on this point. In that
case which involved a suit on a contract entered
into by an entity supervised by the Office of the
President, the Court held that while the said
entity opened itself to suit by entering into the
subject contract with a private entity; still, the
trial court was in error in ordering the
582 | PART 1 C O N S T I 1 FULLTEXT
garnishment of its funds, which were public in
nature and, hence, beyond the reach of
garnishment and attachment proceedings.
Accordingly, the Court ordered that the writ of
preliminary attachment issued in that case be
lifted, and that the parties be allowed to prove
their respective claims at the trial on the merits.
There, the Court highlighted the reason for the
rule, to wit:
The universal rule that where the State gives its
consent to be sued by private parties either by
general or special law, it may limit claimant’s
action "only up to the completion of proceedings
anterior to the stage of execution" and that the
power of the Courts ends when the judgment is
rendered, since government funds and
properties may not be seized under writs of
execution or garnishment to satisfy such
judgments, is based on obvious considerations
of public policy. Disbursements of public funds
must be covered by the corresponding
appropriations as required by law. The functions
and public services rendered by the State
cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their
legitimate and specific objects. x x x39
With this in mind, the Court holds that the writ of
preliminary attachment must be dissolved and,
indeed, it must not have been issued in the very
first place. While there is merit in private
respondent’s position that she, by affidavit, was
able to substantiate the allegation of fraud in the
same way that the fraud attributable to
petitioners was sufficiently alleged in the
complaint and, hence, the issuance of the writ
would have been justified. Still, the writ of
attachment in this case would only prove to be
useless and unnecessary under the premises,
since the property of the municipality may not, in
the event that respondent’s claim is validated, be
subjected to writs of execution and garnishment
— unless, of course, there has been a
corresponding appropriation provided by law.40 1avvphi1
Anent the other issues raised by petitioners
relative to the denial of their motion to dissolve
the writ of attachment, i.e., unenforceability of
the contract and the veracity of private
respondent’s allegation of fraud, suffice it to say
that these pertain to the merits of the main
action. Hence, these issues are not to be taken
up in resolving the motion to discharge, lest we
run the risk of deciding or prejudging the main
case and force a trial on the merits at this stage
of the proceedings.41
There is one final concern raised by petitioners
relative to the denial of their motion for
reconsideration. They complain that it was an
error for the Court of Appeals to have denied the
motion on the ground that the same was filed by
an unauthorized counsel and, hence, must be
treated as a mere scrap of paper.42
It can be derived from the records that petitioner
Ople, in his personal capacity, filed his Rule 65
petition with the Court of Appeals through the
representation of the law firm Chan Robles &
Associates. Later on, municipal legal officer
Joselito Reyes, counsel for petitioner Ople, in his
official capacity and for petitioner municipality,
filed with the Court of Appeals a Manifestation
with Entry of Appearance43 to the effect that he,
as counsel, was "adopting all the pleadings filed
for and in behalf of [Ople’s personal
representation] relative to this case."44
It appears, however, that after the issuance of
the Court of Appeals’ decision, only Ople’s
personal representation signed the motion for
reconsideration. There is no showing that the
municipal legal officer made the same
manifestation, as he previously did upon the
filing of the petition.45 From this, the Court of
Appeals concluded that it was as if petitioner
municipality and petitioner Ople, in his official
capacity, had never moved for reconsideration of
the assailed decision, and adverts to the ruling in
Ramos v. Court of Appeals46 and Municipality of
Pililla, Rizal v. Court of Appeals47 that only under
well-defined exceptions may a private counsel
be engaged in lawsuits involving a municipality,
none of which exceptions obtains in this case.48
The Court of Appeals is mistaken. As can be
seen from the manner in which the Manifestation
with Entry of Appearance is worded, it is clear
that petitioner municipality’s legal officer was
intent on adopting, for both the municipality and
Mayor Ople, not only the certiorari petition filed
with the Court of Appeals, but also all other
pleadings that may be filed thereafter by Ople’s
personal representation, including the motion for
reconsideration subject of this case. In any
event, however, the said motion for
reconsideration would warrant a denial, because
there seems to be no matter raised therein that
has not yet been previously addressed in the
assailed decision of the Court of Appeals as well
as in the proceedings below, and that would
have otherwise warranted a different treatment
of the issues involved.
WHEREFORE, the Petition is GRANTED IN
PART. The January 31, 2005 Decision of the
Court of Appeals in CA-G.R. SP No. 81888
is AFFIRMED insofar as it affirmed the October
20, 2003 Decision of the Regional Trial Court of
Cebu City, Branch 7 denying petitioners’ motion
to dismiss in Civil Case No. CEB-28587. The
583 | PART 1 C O N S T I 1 FULLTEXT
assailed decision is REVERSED insofar as it 2
Penned by Associate Justice Ramon
affirmed the said trial court’s denial of M. Bato, Jr., with Associate Justices
petitioners’ motion to discharge the writ of Arsenio J. Magpale and Pampio A.
preliminary attachment issued in that case. Abarintos, concurring; id. at 60-69.
Accordingly, the August 4, 2003 Writ of
Preliminary Attachment issued in Civil Case No. 3
Id. at 70-74.
CEB-28587 is ordered lifted.
4
CA rollo, pp. 48-52.
SO ORDERED.
5
The complaint was docketed as Civil
DIOSDADO M. PERALTA Case No. CEB-28587; records, pp. 1-16.
Associate Justice
6
Records, Vol. 1, pp. 17-34.
WE CONCUR:
7
Id. at 41-42.
RENATO C. CORONA
Associate Justice 8
Id. at 49.
Chairperson
9
Id. at. 78-82.
ANTONIO
PRESBITERO J.
EDUARDO B.
VELASCO, JR. 10
Id. at 80.
NACHURA
Associate Justice
Associate Justice 11
Id.

JOSE CATRAL MENDOZA 12

Id. at 91-97.
Associate Justice
13
Id. at 91-92.
ATTESTATION
14
Id. at 112-116.
I attest that the conclusions in the above
Decision had been reached in consultation
before the case was assigned to the writer of the
15
Id. at 153.
opinion of the Court’s Division.
16
Rollo, p. 68. The Court of
RENATO C. CORONA Appeals disposed of the case as
Associate Justice follows:
Third Division, Chairperson
WHEREFORE, the petition is
CERTIFICATION DENIED for lack of merit.

Pursuant to Section 13, Article VIII of the SO ORDERED.

Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the 17
Rollo, p. 74.
above Decision had been reached in
consultation before the case was assigned to the 18
Id. at 16-18.
writer of the opinion of the Court’s Division.
19
Id. at 256-259.
REYNATO S. PUNO
Chief Justice 20
Art. 1403. The following contracts are
unenforceable, unless they are ratified:

xxxx

Footnotes
(2) Those that do not comply
with the Statute of Frauds as set
1
Rollo, pp. 3-51. forth in this number. In the
following cases an agreement
hereafter made shall be
584 | PART 1 C O N S T I 1 FULLTEXT
 unenforceable by action, unless
the same, or some note or
memorandum thereof, be in
writing, and subscribed by the
party charged, or by his agent;
evidence, therefore, of the
agreement cannot be received
without the writing, or a
secondary evidence of its
contents:
(a) An agreement that by its
terms is not to be performed
within a year from the making
thereof;
(b) A special promise to answer
for the debt, default, or
miscarriage of another;
(c) An agreement made in
consideration of marriage, other
than a mutual promise to marry;
(d) An agreement for the sale of
goods, chattels or things in
action, at a price not less than
five hundred pesos, unless the
buyer accept and receive part of
such goods and chattels, or the
evidences, or some of them, of
such things in action, or pay at
the time some part of the
purchase money; but when a
sale is made by auction and
entry is made by the auctioneer
in his sales book, at the time of
the sale, of the amount and kind
of property sold, terms of sale,
price, names of the purchasers
and person on whose account
the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing
for a longer period than one
year, or for the sale of real
property or of an interest
therein;
(f) A representation as to the
credit of a third person.
21
Rosencor Development Corporation v.
Court of Appeals, 406 Phil. 565, 575
(2001).
22
Civil Code, Art. 1356.
Asia Production Co., Inc. v. Paño,
23
G.R. No. 51058, January 27, 1992, 205
SCRA 458.
24
Gallemit v. Tabilaran, 20 Phil. 241
(1911).
25
Section 1. Grounds.—Within the time
for but before filing the answer to the
complaint or pleading asserting a claim,
a motion to dismiss may be made on
any of the following grounds:
xxxx
(i) that the claim on which the
action is founded is
unenforceable under the
provisions of the statute of
frauds.
26
Id.
27
Spouses Jayme and Ana Solidarios v.
Alampay, 159 Phil. 149, 153 (1975).
28
390 Phil. 872 (2000).
G.R. No. 59255, December 29, 1995,
29
251 SCRA 545.
30
Viewmaster Construction Corporation
v. Roxas, supra note 28, at 546,
citing Navoa v. Court of
Appeals, supra note 29.
31
See Kimpo v. Tabañar, G.R. No. L-
16476, October 31, 1961, 3 SCRA 423,
427.
32
Rollo, pp. 40-50.
33
Id. at 258.
34
See Municipality of San Fernando, La
Union v. Firme, G.R. No. 52179, April 8,
1991, 195 SCRA 692; U.S. v. Guinto,
G.R. Nos. 76607, 79470, 80018, 80258,
February 26, 1990, 182 SCRA
644; Merritt v. Government of the
Philippine Islands, 34 Phil. 311 (1916).
35
457 Phil. 543, 553 (2003),
citing Republic v. Palacios, 23 SCRA
899 (1968).
36
City of Caloocan v. Allarde, supra.
585 | PART 1 C O N S T I 1 FULLTEXT
 G.R. No. 68514, December 17, 1990,
37

192 SCRA 305.

G.R. No. L-30098, February 18, 1970,

38

31 SCRA 616.

39
See note 37, at 313-314.

40
See City of Caloocan v.
Allarde, supra note 35, and Municipality
of San Miguel, Bulacan v. Fernandez,
G.R. No. L-61744, June 25, 1984, 130
SCRA 56.

41
See Davao Light & Power Co., Inc. v.
Court of Appeals, G.R. No. 93262,
November 29, 1991, 204 SCRA 343; GB
Inc. v. Sanchez, 98 Phil. 886 (1956).

42
Rollo, pp. 18-24.

43
CA rollo, p. 230.

44
Id. at 230.

45
The motion for reconsideration was
signed only by the law firm of Chan
Robles & Associates; id. at 288.

G.R. No. 99425, March 3, 1997, 269

46

SCRA 34.

G.R. No. 105909, June 28, 1994, 233

47

SCRA 484.

48
Rollo, pp. 71-73.

586 | PART 1 C O N S T I 1 FULLTEXT

 THIRD DIVISION
G.R. No. 159402 February 23, 2011
AIR TRANSPORTATION OFFICE, Petitioner,
vs.
SPOUSES DAVID* ELISEA
RAMOS, Respondents.
RESOLUTION
BERSAMIN, J.:
The State’s immunity from suit does not extend
to the petitioner because it is an agency of the
State engaged in an enterprise that is far from
being the State’s exclusive prerogative.
Under challenge is the decision promulgated on
May 14, 2003,1 by which the Court of Appeals
(CA) affirmed with modification the decision
rendered on February 21, 2001 by the Regional
Trial Court, Branch 61 (RTC), in Baguio City in
favor of the respondents.2
Antecedents
Spouses David and Elisea Ramos (respondents)
discovered that a portion of their land registered
under Transfer Certificate of Title No. T-58894 of
the Baguio City land records with an area of 985
square meters, more or less, was being used as
part of the runway and running shoulder of the
Loakan Airport being operated by petitioner Air
Transportation Office (ATO). On August 11,
1995, the respondents agreed after negotiations
to convey the affected portion by deed of sale to
the ATO in consideration of the amount of
₱778,150.00. However, the ATO failed to pay
despite repeated verbal and written demands.
Thus, on April 29, 1998, the respondents filed an
action for collection against the ATO and some
of its officials in the RTC (docketed as Civil Case
No. 4017-R and entitled Spouses David and
Elisea Ramos v. Air Transportation Office, Capt.
Panfilo Villaruel, Gen. Carlos Tanega, and Mr.
Cesar de Jesus).
In their answer, the ATO and its co-defendants
invoked as an affirmative defense the issuance
of Proclamation No. 1358, whereby President
Marcos had reserved certain parcels of land that
included the respondents’ affected portion for
use of the Loakan Airport. They asserted that
the RTC had no jurisdiction to entertain the
action without the State’s consent considering
that the deed of sale had been entered into in
the performance of governmental functions.
On November 10, 1998, the RTC denied the
ATO’s motion for a preliminary hearing of the
affirmative defense.
After the RTC likewise denied the ATO’s motion
for reconsideration on December 10, 1998, the
ATO commenced a special civil action for
certiorari in the CA to assail the RTC’s orders.
The CA dismissed the petition for certiorari,
however, upon its finding that the assailed
orders were not tainted with grave abuse of
discretion.3
Subsequently, February 21, 2001, the RTC
rendered its decision on the merits,4 disposing:
WHEREFORE, the judgment is rendered
ORDERING the defendant Air Transportation
Office to pay the plaintiffs DAVID and ELISEA
RAMOS the following: (1) The amount of
₱778,150.00 being the value of the parcel of
land appropriated by the defendant ATO as
embodied in the Deed of Sale, plus an annual
interest of 12% from August 11, 1995, the date
of the Deed of Sale until fully paid; (2) The
amount of ₱150,000.00 by way of moral
damages and ₱150,000.00 as exemplary
damages; (3) the amount of ₱50,000.00 by way
of attorney’s fees plus ₱15,000.00 representing
the 10, more or less, court appearances of
plaintiff’s counsel; (4) The costs of this suit.
SO ORDERED.
In due course, the ATO appealed to the CA,
which affirmed the RTC’s decision on May 14,
2003,5 viz:
IN VIEW OF ALL THE FOREGOING, the
appealed decision is hereby AFFIRMED,
with MODIFICATION that the awarded cost
therein is deleted, while that of moral and
exemplary damages is reduced to ₱30,000.00
each, and attorney’s fees is lowered to
₱10,000.00.
No cost.
SO ORDERED.
Hence, this appeal by petition for review on
certiorari.
Issue
The only issue presented for resolution is
whether the ATO could be sued without the
State’s consent.
587 | PART 1 C O N S T I 1 FULLTEXT
 Ruling
The petition for review has no merit.
The immunity of the State from suit, known also
as the doctrine of sovereign immunity or non-
suability of the State, is expressly provided in
Article XVI of the 1987 Constitution, viz:
Section 3. The State may not be sued without its
consent.
The immunity from suit is based on the political
truism that the State, as a sovereign, can do no
wrong. Moreover, as the eminent Justice
Holmes said in Kawananakoa v. Polyblank:6
The territory [of Hawaii], of course, could waive
its exemption (Smith v. Reeves, 178 US 436, 44
L ed 1140, 20 Sup. Ct. Rep. 919), and it took no
objection to the proceedings in the cases cited if
it could have done so. xxx But in the case at bar
it did object, and the question raised is whether
the plaintiffs were bound to yield. Some doubts
have been expressed as to the source of the
immunity of a sovereign power from suit without
its own permission, but the answer has been
public property since before the days of Hobbes.
Leviathan, chap. 26, 2. A sovereign is exempt
from suit, not because of any formal conception
or obsolete theory, but on the logical and
practical ground that there can be no legal right
as against the authority that makes the law on
which the right depends. "Car on peut bien
recevoir loy d'autruy, mais il est impossible par
nature de se donner loy." Bodin, Republique, 1,
chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure
Maiestatis, chap. 3. Nemo suo statuto ligatur
necessitative. Baldus, De Leg. et Const. Digna
Vox, 2. ed. 1496, fol. 51b, ed. 1539, fol. 61.7
Practical considerations dictate the
establishment of an immunity from suit in favor
of the State. Otherwise, and the State is suable
at the instance of every other individual,
government service may be severely obstructed
and public safety endangered because of the
number of suits that the State has to defend
against.8 Several justifications have been offered
to support the adoption of the doctrine in the
Philippines, but that offered in Providence
Washington Insurance Co. v. Republic of the
Philippines9 is "the most acceptable
explanation," according to Father Bernas, a
recognized commentator on Constitutional
Law,10 to wit:
[A] continued adherence to the doctrine of non-
suability is not to be deplored for as against the
inconvenience that may be caused private
parties, the loss of governmental efficiency and
the obstacle to the performance of its
multifarious functions are far greater if such a
fundamental principle were abandoned and the
availability of judicial remedy were not thus
restricted. With the well-known propensity on the
part of our people to go to court, at the least
provocation, the loss of time and energy
required to defend against law suits, in the
absence of such a basic principle that
constitutes such an effective obstacle, could
very well be imagined.
An unincorporated government agency without
any separate juridical personality of its own
enjoys immunity from suit because it is invested
with an inherent power of sovereignty.
Accordingly, a claim for damages against the
agency cannot prosper; otherwise, the doctrine
of sovereign immunity is violated.11 However, the
need to distinguish between an unincorporated
government agency performing governmental
function and one performing proprietary
functions has arisen. The immunity has been
upheld in favor of the former because its function
is governmental or incidental to such function;12 it
has not been upheld in favor of the latter whose
function was not in pursuit of a necessary
function of government but was essentially a
business.13
Should the doctrine of sovereignty immunity or
non-suability of the State be extended to the
ATO?
In its challenged decision,14 the CA answered in
the negative, holding:
On the first assignment of error, appellants seek
to impress upon Us that the subject contract of
sale partook of a governmental
character. Apropos, the lower court erred in
applying the High Court’s ruling in National
Airports Corporation vs. Teodoro (91 Phil.
203 [1952]), arguing that in Teodoro, the matter
involved the collection of landing and parking
fees which is a proprietary function, while the
case at bar involves the maintenance and
operation of aircraft and air navigational facilities
and services which are governmental functions.
We are not persuaded.
Contrary to appellants’ conclusions, it was not
merely the collection of landing and parking fees
which was declared as proprietary in nature by
the High Court in Teodoro, but management and
maintenance of airport operations as a whole, as
well. Thus, in the much later case of Civil
Aeronautics Administration vs. Court of Appeals
588 | PART 1 C O N S T I 1 FULLTEXT
(167 SCRA 28 [1988]), the Supreme Court,
reiterating the pronouncements laid down
in Teodoro, declared that the CAA (predecessor
of ATO) is an agency not immune from suit, it
being engaged in functions pertaining to a
private entity. It went on to explain in this wise:
xxx
The Civil Aeronautics Administration comes
under the category of a private entity. Although
not a body corporate it was created, like the
National Airports Corporation, not to maintain a
necessary function of government, but to run
what is essentially a business, even if revenues
be not its prime objective but rather the
promotion of travel and the convenience of the
travelling public. It is engaged in an enterprise
which, far from being the exclusive prerogative
of state, may, more than the construction of
public roads, be undertaken by private concerns.
[National Airports Corp. v. Teodoro, supra, p.
207.]
xxx
True, the law prevailing in 1952 when
the Teodoro case was promulgated was Exec.
Order 365 (Reorganizing the Civil Aeronautics
Administration and Abolishing the National
Airports Corporation). Republic Act No. 776
(Civil Aeronautics Act of the Philippines),
subsequently enacted on June 20, 1952, did not
alter the character of the CAA’s objectives under
Exec. Order 365. The pertinent provisions cited
in the Teodoro case, particularly Secs. 3 and 4
of Exec. Order 365, which led the Court to
consider the CAA in the category of a private
entity were retained substantially in Republic Act
776, Sec. 32(24) and (25). Said Act provides:
Sec. 32. Powers and Duties of the
Administrator. – Subject to the general control
and supervision of the Department Head, the
Administrator shall have among others, the
following powers and duties:
xxx
(24) To administer, operate, manage, control,
maintain and develop the Manila International
Airport and all government-owned
aerodromes except those controlled or operated
by the Armed Forces of the Philippines including
such powers and duties as: (a) to plan, design,
construct, equip, expand, improve, repair or alter
aerodromes or such structures, improvement or
air navigation facilities; (b) to enter into, make
and execute contracts of any kind with any
person, firm, or public or private corporation or
entity; …
(25) To determine, fix, impose, collect and
receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect,
to any aircraft for its use of aviation gasoline, oil
and lubricants, spare parts, accessories and
supplies, tools, other royalties, fees or rentals for
the use of any of the property under its
management and control.
xxx
From the foregoing, it can be seen that the CAA
is tasked with private or non-governmental
functions which operate to remove it from the
purview of the rule on State immunity from suit.
For the correct rule as set forth in
the Teodorocase states:
xxx
Not all government entities, whether corporate or
non-corporate, are immune from suits. Immunity
from suits is determined by the character of the
objects for which the entity was organized. The
rule is thus stated in Corpus Juris:
Suits against State agencies with relation to
matters in which they have assumed to act in
private or non-governmental capacity, and
various suits against certain corporations
created by the state for public purposes, but to
engage in matters partaking more of the nature
of ordinary business rather than functions of a
governmental or political character, are not
regarded as suits against the state. The latter is
true, although the state may own stock or
property of such a corporation for by engaging in
business operations through a corporation, the
state divests itself so far of its sovereign
character, and by implication consents to suits
against the corporation. (59 C.J., 313) [National
Airports Corporation v. Teodoro, supra, pp. 206-
207; Italics supplied.]
This doctrine has been reaffirmed in the recent
case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985,
138 SCRA 63], where it was held that the
Philippine National Railways, although owned
and operated by the government, was not
immune from suit as it does not exercise
sovereign but purely proprietary and business
functions. Accordingly, as the CAA was created
to undertake the management of airport
operations which primarily involve proprietary
functions, it cannot avail of the immunity from
589 | PART 1 C O N S T I 1 FULLTEXT
suit accorded to government agencies
performing strictly governmental functions.15
In our view, the CA thereby correctly appreciated
the juridical character of the ATO as an agency
of the Government not performing a purely
governmental or sovereign function, but was
instead involved in the management and
maintenance of the Loakan Airport, an activity
that was not the exclusive prerogative of the
State in its sovereign capacity. Hence, the ATO
had no claim to the State’s immunity from suit.
We uphold the CA’s aforequoted holding.
We further observe the doctrine of sovereign
immunity cannot be successfully invoked to
defeat a valid claim for compensation arising
from the taking without just compensation and
without the proper expropriation proceedings
being first resorted to of the plaintiffs’
property.16 Thus, in De los Santos v.
Intermediate Appellate Court,17 the trial court’s
dismissal based on the doctrine of non-suability
of the State of two cases (one of which was for
damages) filed by owners of property where a
road 9 meters wide and 128.70 meters long
occupying a total area of 1,165 square meters
and an artificial creek 23.20 meters wide and
128.69 meters long occupying an area of 2,906
square meters had been constructed by the
provincial engineer of Rizal and a private
contractor without the owners’ knowledge and
consent was reversed and the cases remanded
for trial on the merits. The Supreme Court ruled
that the doctrine of sovereign immunity was not
an instrument for perpetrating any injustice on a
citizen. In exercising the right of eminent
domain, the Court explained, the State exercised
its jus imperii, as distinguished from its
proprietary rights, or jus gestionis; yet, even in
that area, where private property had been taken
in expropriation without just compensation being
paid, the defense of immunity from suit could not
be set up by the State against an action for
payment by the owners.
Lastly, the issue of whether or not the ATO could
be sued without the State’s consent has been
rendered moot by the passage of Republic Act
No. 9497, otherwise known as the Civil Aviation
Authority Act of 2008.
R.A. No. 9497 abolished the ATO, to wit:
Section 4. Creation of the Authority. – There is
hereby created an independent regulatory body
with quasi-judicial and quasi-legislative powers
and possessing corporate attributes to be known
as the Civil Aviation Authority of the Philippines
(CAAP), herein after referred to as the
"Authority" attached to the Department of
Transportation and Communications (DOTC) for
the purpose of policy coordination. For this
purpose, the existing Air transportation
Office created under the provisions of
Republic Act No. 776, as amended is hereby
abolished.
xxx
Under its Transitory Provisions, R.A. No. 9497
established in place of the ATO the Civil Aviation
Authority of the Philippines (CAAP), which
thereby assumed all of the ATO’s powers, duties
and rights, assets, real and personal properties,
funds, and revenues, viz:
CHAPTER XII
TRANSITORTY PROVISIONS
Section 85. Abolition of the Air Transportation
Office. – The Air Transportation Office (ATO)
created under Republic Act No. 776, a sectoral
office of the Department of Transportation and
Communications (DOTC), is hereby abolished. 1avv phi1
All powers, duties and rights vested by law
and exercised by the
ATO is hereby transferred to the Authority.
All assets, real and personal properties,
funds and revenues owned by or vested in the
different offices of the ATO are transferred to
the Authority. All contracts, records and
documents relating to the operations of the
abolished agency and its offices and branches
are likewise transferred to the Authority. Any
real property owned by the national
government or government-owned
corporation or authority which is being used
and utilized as office or facility by the
ATO shall be transferred and titled in favor of
the Authority.
Section 23 of R.A. No. 9497 enumerates the
corporate powers vested in the CAAP, including
the power to sue and be sued, to enter into
contracts of every class, kind and description, to
construct, acquire, own, hold, operate, maintain,
administer and lease personal and real
properties, and to settle, under such terms and
conditions most advantageous to it, any claim by
or against it.18
With the CAAP having legally succeeded the
ATO pursuant to R.A. No. 9497, the obligations
that the ATO had incurred by virtue of the deed
of sale with the Ramos spouses might now be
enforced against the CAAP.
590 | PART 1 C O N S T I 1 FULLTEXT
WHEREFORE, the Court denies the petition for
review on certiorari, and affirms the decision
promulgated by the Court of Appeals.
No pronouncement on costs of suit.
SO ORDERED.
promulgated on April 23, 2003 (see
rollo, p. 136).
** Acting Chairperson in lieu of Justice
Conchita Carpio Morales who is on
leave per Special Order No. 925 dated
January 24, 2011.

LUCAS P. BERSAMIN *** Additional member per Special Order

Associate Justice No. 926 dated January 24, 2011.

WE CONCUR:
1
Rollo, pp. 25-35; penned by Associate
Justice Conrado M. Vasquez (later
ARTURO D. BRION** Presiding Justice, now retired), and
concurred in by Associate Justice
Associate Justice
Mercedes Gozo-Dadole (retired) and
Acting Chairperson
Associate Justice Rosmari D.
Carandang,
ROBERTO A. MARTIN S.
ABAD*** VILLARAMA, JR. 2
Id., pp. 80-87; penned by Judge
Associate Justice Associate Justice Antonio C. Reyes.

MARIA LOURDES P. A. SERENO 3

Id.
Associate Justice
4
Id.
ATTESTATION
5
Id., pp. 25-35.
I attest that the conclusions in the above
Resolution had been reached in consultation 6
205 US 349, 353 (1907).
before the case was assigned to the writer of the
opinion of the Court’s Division. 7
Bold emphasis supplied.
ARTURO D. BRION
Associate Justice
8
Veterans Manpower and Protective
Acting Chairperson Services, Inc. v. Court of Appeals, G.R.
No. 91359, Sept. 25, 1992, 214 SCRA
286, 294; Republic v. Purisima, No. L-
CERTIFICATION 36084, Aug. 31, 1977, 78 SCRA 470,
473.
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s 9
L-26386, Sept. 30, 1969, 29 SCRA
Attestation, I certify that the conclusions in the 598, 601-602.
above Resolution had been reached in
consultation before the case was assigned to the
writer of the opinion of the Court’s Division. Bernas, The 1987 Constitution of the
10

Republic of the Philippines: A

Commentary, 2003 Edition, p. 1269.
RENATO C. CORONA
Chief Justice 11
Metropolitan Transportation Service
v. Paredes, 79 Phil. 819 (1948).

12
E.g., Angat River Irrigation System, et.
al. v. Angat River Worker’s Union, et. al.,
Footnotes
102 Phil. 789 (1957).
* David Ramos died on October 14,
E.g., National Airports Corporation v.
13
2001, before the assailed decision was
Teodoro, Sr. and Phil. Airlines Inc., 91
promulgated. He was substituted by his
Phil. 203 (1952).
children Cherry Ramos, Joseph David
Ramos and Elsie Grace R. Dizon
pursuant to a resolution of the CA
14
Rollo, pp. 25-35.
591 | PART 1 C O N S T I 1 FULLTEXT
15
Id., pp. 29-32.

16
Republic v. Sandiganbayan, G.R. No.
90478, Nov. 2, 1991, 204 SCRA 212,
231; Ministerio v. Court of First Instance
of Cebu, No. L-31635, Aug. 31, 1971, 40
SCRA 464; Santiago v. Republic, No. L-
48214, Dec. 19, 1978, 87 SCRA 294.

G.R. Nos. 71998-99, June 2, 1993,

17

223 SCRA 11.

Section 23. Corporate Powers. – The

18

Authority, acting through the Board,

shall have the following corporate
powers:

(a) To succeed in its corporate

name, to sue and be sued in
such corporate name xxx.

xxx

(c) To enter into, make,

perform and carry out
contracts of every class, kind
and description,which are
necessary or incidental to the
realization of its purposes, with
any person, domestic or foreign
private firm, or corporation, local
or national government office,
agency and with international
institutions or foreign
government;

xxx

(e) To construct, acquire, own,

hold, operate, maintain,
administer and lease personal
and real properties, including
buildings, machinery,
equipment, other infrastructure,
agricultural land, and its
improvements, property rights,
and interest therein x x x

xxx

(i) To settle, under such terms

and conditions most
advantageous to it, any claim
by or against it;

xxx

592 | PART 1 C O N S T I 1 FULLTEXT

593 | PART 1 C O N S T I 1 FULLTEXT