G.R. No.

174153             October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS,Petitioners, 
vs.
THE COMMISSION ON ELECTIONS, Respondent.

x--------------------------------------------------------x

ALTERNATIVE LAW GROUPS, INC., Intervenor.

x ------------------------------------------------------ x

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,

BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

x------------------------------------------------------ x 

ATTY. PETE QUIRINO QUADRA, Intervenor. 

x--------------------------------------------------------x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA

represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights, Intervenors.

x--------------------------------------------------------x 

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL,Intervenors.

x--------------------------------------------------------x

ARTURO M. DE CASTRO, Intervenor. 

x ------------------------------------------------------- x 

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. 

x---------------------------------------------------------x

LUWALHATI RICASA ANTONINO, Intervenor.

x ------------------------------------------------------- x 

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS

C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. 

x ------------------------------------------------------- x

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. 

x -------------------------------------------------------- x

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.

VICTORINO F. BALAIS, Intervenors.

x -------------------------------------------------------- x 

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,

JR., Intervenor. 

x ------------------------------------------------------- x

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ------------------------------------------------------- x

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.

x -------------------------------------------------------- x 

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE

CHAPTERS, Intervenors. 

x --------------------------------------------------------x 

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.

OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors. 

x -----------------------------------------------------x 

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. 

x -----------------------------------------------------x

G.R. No. 174299             October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners, 
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735"). 

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelve per centum (12%) of all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals. 

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by
adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino
Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER? 

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.7

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution.
The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA
6735 inadequate to implement the initiative clause on proposals to amend the Constitution.9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC
to give due course to their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their petition since Santiago is not a
binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to
that case, and their petition deserves cognizance as an expression of the "will of the sovereign
people."

In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's
verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent
injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the
petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General
proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative." 

Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing
intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The
opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino Group's compliance with
the minimum requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not
mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject. 

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties' memoranda, the Court considered the case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to implement the initiative clause on
proposals to amend the Constitution; and 

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition. 

The Ruling of the Court

There is no merit to the petition. 

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections. 

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

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign? 

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment. 
 MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature." 

The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire proposal.
No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition. 

These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the people through initiative upon a
petition" only if the people sign on a petition that contains the full text of the proposed
amendments. 

The full text of the proposed amendments may be either written on the face of the petition, or
attached to it. If so attached, the petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to the petition had seen the full text of
the proposed amendments before signing. Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the proposed
amendments before signing. 

The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions, the unbending requirement is that the people must first see the full
text of the proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed amendments.16

The rationale for this requirement has been repeatedly explained in several decisions of various
courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared: 

[A] signature requirement would be meaningless if the person supplying the

signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the petition, could easily
mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the drafter of
 the petition, who obviously has a vested interest in seeing that it gets the requisite
signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to
sign the initiative petition."); x x x (publication of full text of amended constitutional
provision required because it is "essential for the elector to have x x x the section which is
proposed to be added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of our Constitution
clearly show that the framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the
framers intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full text. Indeed,
Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x as signatories." 

The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments
to the people. The proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay those who gather
the signatures. 

Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures. The proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that
the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of
a signature sheet20 after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments
was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra. 
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: 

Province: City/Municipality: No. of  

Legislative District: Barangay:  
Verified

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" 

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
shall form part of the petition for initiative to amend the Constitution signifies my support for the filing
thereof.

Precinct Name Address Birthdate Signature Verification

Number
Last Name, First MM/DD/YY
Name, M.I.
1            
2            
3            
4            
5            
6            
7            
8            
9            
10            

_________________ _________________ __________________

Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006. 
The signature sheet merely asks a question whether the people approve a shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. 

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition. 

The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started
gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August
2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states
as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity
as a registered voter, for and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the
full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE

COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency

President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint
Declaration for Constitutional Reforms signed by the members of the ULAP and the majority
coalition of the House of Representatives in Manila Hotel sometime in October 2005;
 WHEREAS, the People's Consultative Commission on Charter Change created by Her
Excellency to recommend amendments to the 1987 Constitution has submitted its final report
sometime in December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which

militates against the use of the expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress
to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to
pursue the constitutional reform agenda through People's Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE

MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting held on 14 January 2006
at the Century Park Hotel, Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution
No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution."
The proposals of the Consultative Commission24 are vastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC. 

For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions
have profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino
Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions. 

The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the
filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC.
However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group
caused the circulation of the draft petition, together with the signature sheets, six months before the
filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on
the Lambino Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes. 
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of
Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect
their proposed amendments.

The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signature-
gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments." 

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this
Court that they circulated printed copies of the draft petition together with the signature sheets. The
signature sheets do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:

[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters
who signed the signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition contained in
the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed
with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that
the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply,
the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006. 

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a
proposed change attached to the petition signed by the people. Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition itself. 
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to, the signature sheets. The
Lambino Group's citation of Corpus Juris Secundumpulls the rug from under their feet. 

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
August 2006 during the signature-gathering period, the draft of the petition or amended petition they
filed later with the COMELEC. The Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together with the signature sheets, the petition or
amended petition. Nevertheless, even assuming the Lambino Group circulated the amended
petition during the signature-gathering period, the Lambino Group admitted circulating
only very limited copies of the petition. 

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft petition but
he could not state with certainty how many additional copies the other supporters printed. Atty.
Lambino could only assure this Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies. 

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000
copies of the petition for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show the full text of the
proposed changes to the great majority of the people who signed the signature sheets. 

Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet, only 100,000 signature sheets
could have circulated with the petition. Each signature sheet contains space for ten signatures.
Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000. 

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3
million signatories the full text of the proposed changes. If ever, not more than one million
signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal. The failure to so include the text of
the proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the people through
initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative
clause of the Constitution. 

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the
full text of the proposed changes before signing. They could not have known the nature and effect of
the proposed changes, among which are: 

1. The term limits on members of the legislature will be lifted and thus members of

Parliament can be re-elected indefinitely;26

2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary elections.
Thus, the members of the interim Parliament will determine the expiration of their own
term of office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament
shall convene to propose further amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have
inferred or divined these proposed changes merely from a reading or rereading of the contents of the
signature sheets. 

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would be
held during the 2007 local elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this. 

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition,
states:

Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. x x x x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections. This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year. 

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have
easily written the word "next" before the phrase "election of all local government officials." This would
have insured that the elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the word "next" allows
the interim Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections. 

Thus, the members of the interim Parliament will decide the expiration of their own term of office.
This allows incumbent members of the House of Representatives to hold office beyond their current
three-year term of office, and possibly even beyond the five-year term of office of regular members
of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his
group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation. 

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full
text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the
6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed changes. The result is
a grand deception on the 6.3 million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections. 

The Lambino Group's initiative springs another surprise on the people who signed the signature
sheets. The proposed changes mandate the interim Parliament to make further amendments or
revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
Lambino Group's initiative. 

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling -
when the initiative petition incorporates an unrelated subject matter in the same petition. This puts
the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing
them to sign a petition that effectively contains two propositions, one of which they may find
unacceptable. 

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida
declared:

Combining multiple propositions into one proposal constitutes "logrolling," which, if

our judicial responsibility is to mean anything, we cannot permit. The very broadness of
the proposed amendment amounts to logrolling because the electorate cannot know what it
 is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment
being voted on. x x x x The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied) 

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme
Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling: 

Whenever a bill becomes law through the initiative process, all of the problems that the single-
subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the
deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a
greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative
process. The drafters of an initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while remaining silent on other (more
complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential petition-
signers and eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to
be undertaken by the interim Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution. 

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament
to amend or revise again the Constitution within 45 days from ratification of the proposed
changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again the Constitution. With the
proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution. 

However, the signature sheets do not explain the reason for this rush in amending or revising again
so soon the Constitution. The signature sheets do not also explain what specific amendments or
revisions the initiative proponents want the interim Parliament to make, and why there is a need for
such further amendments or revisions. The people are again left in the dark to fathom the nature
and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the proposed changes. 

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states: 
 Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament
until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of Representatives
even if their term of office will all end on 30 June 2007, three years earlier than that of half of the
present Senators. Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010. 

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister
exercises all the powers of the President. If the interim Parliament does not schedule elections for
the regular Parliament by 30 June 2010, the Prime Minister will come only from the present
members of the House of Representatives to the exclusion of the present Senators. 

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used
to discriminate against the Senators. They could not have known that their signatures would
be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to
members of the existing House of Representatives.

An initiative that gathers signatures from the people without first showing to the people the full text
of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people x x x in a petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's fundamental law,
the writing of the text of the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected individuals. 

The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition. 

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to
comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be
"directly proposed by the people through initiative upon a petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution and
not to its revision. In contrast, Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the Constitution provides:
 ARTICLE XVII
AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or

(2) A constitutional convention. 

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people

through initiative x x x. (Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode
is through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative. 

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode,
applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the
following deliberations of the Constitutional Commission: 

MR. SUAREZ: Thank you, Madam President. 

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2: 

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters. 

This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

x x x x 

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an
 amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on

line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be

covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and
wrote, that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the
power to propose revisions to the Constitution, the people cannot propose revisions even as they
are empowered to propose amendments. 

This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32the Supreme Court of California ruled: 

The initiative power reserved by the people by amendment to the Constitution x x x

applies only to the proposing and the adopting or rejecting of 'laws and amendments
to the Constitution' and does not purport to extend to a constitutional revision. x x x x
It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
 purpose as outlined hereinabove. Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be effected, then
the measure may not properly be submitted to the electorate until and unless it is first agreed
upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33

It is well established that when a constitution specifies the manner in which it may be
amended or revised, it can be altered by those who favor amendments, revision, or other
change only through the use of one of the specified means. The constitution itself recognizes
that there is a difference between an amendment and a revision; and it is obvious from an
examination of the measure here in question that it is not an amendment as that term is
generally understood and as it is used in Article IV, Section 1. The document appears to be
based in large part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to
the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x. 

While differing from that document in material respects, the measure sponsored by the
plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted

to the people through the initiative. If a revision, it is subject to the requirements of Article
XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There
can be no deviation from the constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself. 

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

It is a fundamental principle that a constitution can only be revised or amended in the

manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter or amend
 it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution ― that a
people's initiative may only amend, never revise, the Constitution. 

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should
be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. 

Courts have long recognized the distinction between an amendment and a revision of a constitution.
One of the earliest cases that recognized the distinction described the fundamental difference in this
manner: 

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of
the original instrument as will effect an improvement, or better carry out the purpose for
which it was framed.35 (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, amendment broadly refers to a
change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just
like in our Constitution, courts have developed a two-part test: the quantitative test and the
qualitative test. The quantitative test asks whether the proposed change is "so extensive in its
provisions as to change directly the 'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines only the number of provisions
affected and does not consider the degree of the change. 

The qualitative test inquires into the qualitative effects of the proposed change in the constitution.
The main inquiry is whether the change will "accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the
structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic
governmental plan" includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes changes that
"jeopardize the traditional form of government and the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles
- Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in
the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. 

A change in the structure of government is a revision of the Constitution, as when the three great co-
equal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system
to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government. 

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone
of one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution. 

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes: 

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the entire document, to determine how and to what extent they should
be altered. Thus, for instance a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system be because of its effect on
other important provisions of the Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative
"was defective and unauthorized where [the] proposed amendment would x x x affect several other
provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary
 change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the
people at the General Election and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate amendments the people should refuse to
adopt them, simple chaos would prevail in the government of this State. The same result
would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too numerous to
detail. These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many
sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate
inconsistencies and conflicts and to give the State a workable, accordant, homogenous and
up-to-date document. All of this could disappear very quickly if we were to hold that it could
be amended in the manner proposed in the initiative petition here.43(Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department. 

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams. 

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one
of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts
and proposes changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide
for both "amendment" and "revision" when it speaks of legislators and constitutional
 delegates, while the same provisions expressly provide only for "amendment" when it speaks
of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work full-
time on the matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision"
and "amendment" pertain only to the process or procedure of coming up with the
corrections, for purposes of interpreting the constitutional provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot

reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied) 

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the
same proposed changes that the Lambino Group wrote in the present initiative, the changes would
constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the land. 

The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are
clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any
theory espousing a construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does
not constitute a revision justly deserves rejection. 

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution
proposed by initiative. His theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the
distinction between amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching
 changes outside the lines of the original instrument, including profound impacts on existing
fundamental rights and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion
the most basic principles of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of
the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a
revision of the constitution may not be accomplished by initiative, because of the provisions
of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative
as a means of amending the Oregon Constitution, but it contains no similar sanction for its
use as a means of revising the constitution." x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section
of the constitution which provides the means for constitutional revision and it excludes the
idea that an individual, through the initiative, may place such a measure before the
electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply
to constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and
at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties
arise in determining whether there is an amendment or revision. The present initiative is indisputably
located at the far end of the red spectrum where revision begins. The present initiative seeks a
radical overhaul of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the Constitution. 

Where the proposed change applies only to a specific provision of the Constitution without affecting
any other section or article, the change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18 years to 15 years47 is an
amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change
requiring a college degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is located. 

However, there can be no fixed rule on whether a change is an amendment or a revision. A change
in a single word of one sentence of the Constitution may be a revision and not an amendment. For
example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1,
Article II50 of the Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other provisions, as well as how it affects the
structure of government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution. 

Since a revision of a constitution affects basic principles, or several provisions of a constitution,

a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that
remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent
assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied) 

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior
law, the later law prevails. This rule also applies to construction of constitutions. However, the
Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of
construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall
be amended to conform with a unicameral parliamentary form of government." The effect is to
freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a
future separate constitutional amendment. 

Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a "surplusage."
In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision
automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. 

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is
not between a provision in Article VI of the 1987 Constitution and a provision in the proposed
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
"Parliamentary system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government." 

Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are
among the few countries with unicameral parliaments? The proposed changes could not possibly
refer to the traditional and well-known parliamentary forms of government ― the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize that they were
adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? 

This drives home the point that the people's initiative is not meant for revisions of the Constitution
but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-
Parliamentary system requires harmonizing several provisions in many articles of the Constitution.
Revision of the Constitution through a people's initiative will only result in gross absurdities in the
Constitution. 

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this
Constitution."

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the
Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution. 

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before
the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the
well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be
resolved on some other grounds.51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
initiatives to amend the Constitution, this will not change the result here because the present petition
violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative
must first comply with Section 2, Article XVII of the Constitution even before complying with RA
6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for
an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number
of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming
to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. 

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
form of government. Since the present initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail. 

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this
Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA)
v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court
should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decisions of this Court
in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

5. Conclusion 

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of
all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising
it in blatant violation of the clearly specified modes of amendment and revision laid down in the
Constitution itself. 

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters,
to be tossed and turned by every dominant political group of the day. If this Court allows today a
cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new
dominant political group that comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this
country. 
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes
cast53 − approved our Constitution in a national plebiscite held on 11 February 1987. That approval
is the unmistakable voice of the people, the full expression of the people's sovereign will.
That approval included the prescribed modes for amending or revising the Constitution.

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group,
can change our Constitution contrary to the specific modes that the people, in their sovereign
capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional
change, which means subverting the people's sovereign will and discarding the Constitution.
This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution,
this Court is sworn to perform its solemn duty to defend and protect the Constitution, which
embodies the real sovereign will of the people.

Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override
the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise,
the Constitution ― the people's fundamental covenant that provides enduring stability to our society
― becomes easily susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. 

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that
their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative. 

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution,
which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend
and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively
gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. 

WHEREFORE, we DISMISS the petition in G.R. No. 174153. 

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,

Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.
ARTURO M. TOLENTINO, petitioner, 
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA,
and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the
1971 Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines
to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution
No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by
declaring said resolutions to be without the force and effect of law in so far as they direct the holding
of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional Convention,
through its President, for such action as they may deem proper to take. In due time, respondent
COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this
nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for
the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of
the Convention be made respondents. After the petition was so amended, the first appeared thru
Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents,
thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any rate, notwithstanding
that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case. 

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being
by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16,
1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under
and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to the

Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in
an election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and
other preparatory works over, as its first formal proposal to amend the Constitution, its session which
began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28,
1971, the Convention approved Organic Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE

CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO
18 
 BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention: 

Section 1. Section One of Article V of the Constitution of the Philippines is amended

to as follows:

Section 1. Suffrage may be exercised by (male) citizens of the

Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.

Section 2. This amendment shall be valid as part of the Constitution of the

Philippines when approved by a majority of the votes cast in a plebiscite to coincide
with the local elections in November 1971.

Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from
its savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the
Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as
the Constitutional Convention Act of 1971, may we call upon you to help the
Convention implement this resolution:
 Sincerely,

(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute
its official and sample ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee
to implement the Resolution.

This Committee issued implementing guidelines which were approved by the

President who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies
of the order, resolution and letters of transmittal above referred to (Copy of the report
is hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

 On October 12, 1971, the Convention passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the authority of the President of the Convention to
implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee
ratifying all acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court —
speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution — which was being submitted to the people for ratification —
satisfied the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-
18684, Sept. 14, 1961). In the first we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party having the
second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion the
representatives districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of
which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is

not included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people — as
the repository sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV, Constitution of
the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution — they are the very source of all powers of
government including the Constitution itself.
 Since, when proposing, as a constituent assembly, amendments to the Constitution,
the members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within
or beyond constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.

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

assembly — violates the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent
with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of

all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments are submitted
to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are duly ratified by the
people, it necessarily follows that the acts of convention, its officers and members are not immune
from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety
and in everyone of its parts the existence of the Convention notwithstanding, and operates even
within the walls of that assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of the Bill of Rights of the existing
Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the
taking of private property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session, suspend the
privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of the distribution of powers
in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an act
of the Convention be assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a contention is correct or not? It
is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve
such a grave constitutional question must be lodged on some authority, or we would have to confess
that the integrated system of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel
in Angara vs. Electoral Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and balances
and subject to specific limitations and restrictions provided in the said instrument.
The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in our Constitution are
real as they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one
and half centuries. In our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.

The Constitution is a definition of the powers or government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions is in this manner the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.

But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must
be ever ready to mark, their voices to pronounce ... aggression on the authority of
their Constitution." In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the other
hand, the Electoral Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the election, returns
and qualifications of members of the National Assembly; notwithstanding the
previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of
cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as contended by
the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave

constitutional nature between the National Assembly on the one hand and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely, to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the
 Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason, and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject matter
of the present controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the sole judge of all
contests relating to the election, returns and qualifications of the members of the
National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between and among these departments, or,
between any of them, on the one hand, and any other constitutionally created independent body, like
the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the
House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has
been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of and under
the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both the
Convention and the Court are subject to the Constitution and the rule of law, and "upon principle,
reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the
Court, under the existing Constitution to resolve the issues in which petitioner, respondents and
intervenors have joined in this case. 

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of
the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of
suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well
as in the subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution
No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to
other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words,
nothing that the Court may say or do, in this case should be understood as reflecting, in any degree
or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not
before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity
and purity of purpose cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which
at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion
and disorder, anarchy and violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to
give meaning and vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms,
to the point of being convinced that meaningful change is the only alternative to a violent revolution,
this Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the
existing Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of
things, as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge its constitutional duty
in such premises. The issues raised by petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and form it
may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down
by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique footing in that
regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of
a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from
making any pronouncement or expressing Our views on this question until a more appropriate case
comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it
is the condition and limitation that all the amendments to be proposed by the same Convention must
be submitted to the people in a single "election" or plebiscite. It being indisputable that the
amendment now proposed to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null
and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocably says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the Constitution is as important as the
whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is
to be viable as the framework of the government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the
other. lt is inconceivable how a constitution worthy of any country or people can have any part which
is out of tune with its other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once
the original constitution is approved, the part that the people play in its amendment becomes harder,
for when a whole constitution is submitted to them, more or less they can assumed its harmony as
an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of the document as a whole. And so
also, when an amendment is submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of
suffrage, there are other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication
whether they will ever be or not, because Congress has reserved those for future action, what kind
of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing substantial changes,
if not radical ones, in almost every part and aspect of the existing social and political order enshrined
in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the
effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a harmonious whole. In the context of the present
state of things, where the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can base their judgment on. We
reject the rationalization that the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the proposed amendment is
to enable the eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language
of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the Court has its own duties to the people
under the Constitution which is to decide in appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate
the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the
ratification of all the amendments the Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of
the Constitution, the same should be submitted to them not separately from but together with all the
other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance with the said
organic resolution. In view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

G.R. No. L-32476 October 20, 1970

SIMEON G. DEL ROSARIO, petitioner, 

vs.
UBALDO CARBONELL, JAIME N. FERRER, LINO PATAJO and CESAR
MILAFLOR, respondents.

Simeon G. del Rosario in his own behalf.

Office of the Solicitor General for respondents.

MAKASIAR, J.:.

This petition for declaratory relief was filed pursuant to Sec. 19 of R.A. No. 6132 by petitioner
Simeon G. del Rosario against the National Treasurer as well as the Chairman and members of the
Commission on Elections, praying that the entire R.A. No. 6132 be declared unconstitutional.

The Solicitor General filed his answer to the petition in behalf of respondents.

The petition does not contain sufficient averments as to the particular right of the petitioner that may
be affected by any provision of the law. Assuming as true his 
allegation — which respondents specifically deny — that he is a temporary staff writer of the Weekly
Nation Magazine, a permanent international Research Officer of the Southeast Asia Treaty
Organization since October 5, 1957 and as such is on home leave and awaiting recall and re-
instatement to his post in Bangkok, Thailand by the Department of Foreign Affairs, the same does
not indicate that he is a prospective candidate or is a member of any political party or any civic,
religious, professional, or labor organization whose rights may be impaired by Sec. 6(A), par. 5 and
Sec. 8(a) of R.A. No. 6132, which he challenges as oppressive.

Because he assails the appropriation of twenty-nine million pesos in Sec. 21 of the law as simply a
waste of public funds, because there is no time limit for the duration of the Constitutional
Convention, which may dissipate its time in pointless discussion without reaching any consensus or
conclusion and thus degenerate into a "Debating Club, Unlimited," his interest as a taxpayer on this
score to contest the validity of the law may be sustained.
1. The charge of petitioner that Congress abdicated its power as a constituent body to propose
amendments in favor of the Constitutional Convention, is refuted by Art. XV of the Constitution which
authorizes Congress sitting as a Constituent Assembly either to propose amendments or to call a
convention for the purpose. The choice of either alternative is solely committed to Congress, which
cannot be inquired into nor interfered with by this Tribunal, the same being purely a political
question.1

2. Likewise, whether there is necessity for amending the Constitution is also addressed to the wise
judgment of Congress acting as a Constituent Assembly, against which the Court cannot pit its own
judgment.

3. And whether the Constitutional Convention will only propose amendments to the Constitution or
entirely overhaul the present Constitution and propose an entirely new Constitution based on an
ideology foreign to the democratic system, is of no moment; because the same will be submitted to
the people for ratification. Once ratified by the sovereign people, there can be no debate about the
validity of the new Constitution.

4. The fact that the present Constitution may be revised and replaced with a new one by the
Constitutional Convention called in Resolutions Nos. 2 and 4, respectively, of 1967 and 1969,
because under Sec. 6(A) par. 5, of the law, a candidate may include a concise statement of his
principal constitutional reforms, programs or policies, is no argument against the validity of the law
because "amendment" includes the "revision" or total overhaul of the entire Constitution. At any rate,
whether the Constitution is merely amended in part or revised or totally changed would become
immaterial the moment the same is ratified by the sovereign people.

5. This Court, in a decision dated September 11, 1970 in the cases of Imbong vs. Ferrer, et
al. and Gonzales vs. Ferrer, et al., G.R. Nos. L-32432 and L-32443, held that neither R.A. No. 6132
nor its Sections 2, 5 and 8(a), paragraph one, can he declared unconstitutional.

6. This Court also sustained the validity of Sec 4 and the second paragraph of Sec. 8(a) of R.A. No.
6132 in a decision dated September 3, 1970. 2

7. Petitioner impugns the constitutionality of the title of R.A. No. 6132 as embracing more than one
subject and is therefore violative of paragraph 1, Sec. 21 of Art. VI of the Constitution, simply
because it failed to include the phrase "TO PROPOSE AMENDMENTS TO THE CONSTITUTION
OF THE PHILIPPINES."
The title of the law reads "An Act Implementing Resolution of Both Houses Numbered Two as
Amended by Resolution of Both Houses Numbered Four of the Congress of the Philippines Calling
for a Constitutional Convention, Providing for Proportional Representation Therein and Other Details
Relating to the Election of Delegates to and the Holding of the Constitutional Convention, Repealing
for the Purpose Republic Act Four Thousand Nine Hundred Fourteen, and for Other Purposes."

It is patent from the aforequoted title that the inclusion of the phrase "To propose amendments to the
Constitution of the Philippines" is superfluous and therefore unnecessary; because the very title
expressly states that the act implements Resolutions of Both Houses Nos. 2 and 4, respectively of
1967 and 1969, and both Resolutions Nos. 2 and 4 likewise categorically state in their titles that the
Constitutional Convention called for therein is "to propose amendments to the Constitution of the
Philippines," which phrase is reiterated in Sec. 1 of both Resolutions.

Moreover, the power to propose amendments to the Constitution is implicit in the call for the
convention itself, whose raison d'etre is to revise the present Constitution. Consequently, there is no
fraud or surprise that is perpetrated by the questioned title on the legislature and the public, which is
sought to be avoided by the constitutional requirement that only one subject shall be embraced in
the bill which shall be expressed in the title thereof.

Furthermore, it is not required that the title of the bill be an index to the body of the act or be
comprehensive in matters of detail. It is enough that it fairly indicates the general subject and
reasonably covers all the provisions of the act so as not to mislead Congress or the people.3 All the
details provided for in R.A. No. 6132 are germane to and are comprehended by its title.

WHEREFORE, the prayer in the petition is hereby denied and R.A. No. 6132 is not unconstitutional.
Without costs.

Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.

Zaldivar, J., reserves his vote.

Fernando J., concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-
32432 and Gonzalez v. Comelec, L-32443.
G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, petitioner, 
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as
members thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE

VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION
ACT OF 1970. RAUL M. GONZALES, petitioner, 
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres
and Guillermo C. Nakar for respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A.
No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar,
taxpayers and interested in running as candidates for delegates to the Constitutional Convention.
Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it
prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the
respondents, hearings were held at which the petitioners and the amici curiae, namely Senator
Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez
argued orally.

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to
Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of Congressmen, to be
elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid
Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall
be composed of 320 delegates apportioned among the existing representative districts according to
the number of their respective inhabitants: Provided, that a representative district shall be entitled to
at least two delegates, who shall have the same qualifications as those required of members of the
House of Representatives,"  "and that any other details relating to the specific apportionment of
1

delegates, election of delegates to, and the holding of, the Constitutional Convention shall be
embodied in an implementing legislation: Provided, that it shall not be inconsistent with the
provisions of this Resolution." 2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 
4914.3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions
embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether
elective or appointive, including members of the Armed Forces of the Philippines, as well as officers
and employees of corporations or enterprises of the government, as resigned from the date of the
filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter
alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art.
XII of the Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was
upheld. 4

II

Without first considering the validity of its specific provisions, we sustain the constitutionality of the
enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-
making authority, and not as a Constituent Assembly, because —

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the

Constitution, has full and plenary authority to propose Constitutional amendments or
to call a convention for the purpose, by a three-fourths vote of each House in joint
session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a
constitutional convention were passed by the required three-fourths vote.
 2. The grant to Congress as a Constituent Assembly of such plenary authority to call
a constitutional convention includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective exercise of the principal power
granted, such as the power to fix the qualifications, number, apportionment, and
compensation of the delegates as well as appropriation of funds to meet the
expenses for the election of delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details indispensable to a fruitful
convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details,
except the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present

Constitution solely and exclusively in Congress acting as a Constituent Assembly,
the power to enact the implementing details, which are now contained in Resolutions
Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress
acting as a Constituent Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive legislative power,
which power encompasses all matters not expressly or by necessary implication
withdrawn or removed by the Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any specific provision of the
constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide

for such implementing details after calling a constitutional convention, Congress,
acting as a legislative body, can enact the necessary implementing legislation to fill in
the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended
by Res. No. 4.

5. The fact that a bill providing for such implementing details may be vetoed by the
President is no argument against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable as Congress can override the
Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in
accordance with proportional representation and therefore violates the Constitution and the intent of
the law itself, without pinpointing any specific provision of the Constitution with which it collides.

Unlike in the apportionment of representative districts, the Constitution does not expressly or
impliedly require such apportionment of delegates to the convention on the basis of population in
each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each province, for reasons of economy
and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the
apportionment of delegates to the convention to be based on the number of inhabitants in each
representative district, they would have done so in so many words as they did in relation to the
apportionment of the representative districts.5

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent
expressed therein; for it merely obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts according to the number of their
respective inhabitants, but fixing a minimum of at least two delegates for a representative district.
The presumption is that the factual predicate, the latest available official population census, for such
apportionment was presented to Congress, which, accordingly employed a formula for the
necessary computation to effect the desired proportional representation.

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now
R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of
the delegates on the 1970 official preliminary population census taken by the Bureau of Census and
Statistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a
reasonable apportionment of delegates. The Director of the Bureau of Census and Statistics himself,
in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of
the population, we have computed the distribution of delegates to the Constitutional Convention
based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method
of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2,
as amended. Upon your request at the session of the Senate-House Conference Committee
meeting last night, we are submitting herewith the results of the computation on the basis of the
above-stated method."

Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment. The fact that the lone and small congressional district of Batanes, may be over-
6

represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts, each of which is also allotted
only two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the
apportionment as not effecting proportional representation. Absolute proportional apportionment is
not required and is not possible when based on the number of inhabitants, for the population census
cannot be accurate nor complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily death and birth. It is enough
that the basis employed is reasonable and the resulting apportionment is substantially proportional.
Resolution No. 4 fixed a minimum of two delegates for a congressional district.

While there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the
computation formula adopted by, Congress for proportional representation as, directed in Res. No. 4
is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a
substantially proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as
unconstitutional, granted more representatives to a province with less population than the provinces
with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is
allotted only two delegates, which number is equal to the number of delegates accorded other
provinces with more population. The present petitions therefore do not present facts which fit the
mould of the doctrine in the case of Macias et al. vs. Comelec, supra.

The impossibility of absolute proportional representation is recognized by the Constitution itself when
it directs that the apportionment of congressional districts among the various provinces shall be "as
nearly as may be according to their respective inhabitants, but each province shall have at least one
member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly
as may be according to their respective inhabitants" emphasizes the fact that the human mind can
only approximate a reasonable apportionment but cannot effect an absolutely proportional
representation with mathematical precision or exactitude.

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due
process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected
delegate from running "for any public office in any election" or from assuming "any appointive office
or position in any branch of the government government until after the final adjournment of the
Constitutional Convention."

That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our
constitutional system. The State through its Constitution or legislative body, can create an office and
define the qualifications and disqualifications therefor as well as impose inhibitions on a public
officer. Consequently, only those with qualifications and who do not fall under any constitutional or
statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the
questioned inhibition, is to immunize the delegates from the perverting influence of self-interest,
party interest or vested interest and to insure that he dedicates all his time to performing solely in the
interest of the nation his high and well nigh sacred function of formulating the supreme law of the
land, which may endure for generations and which cannot easily be changed like an ordinary statute.
With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining
leverage for concessions in the form of an elective or appointive office as long as the convention has
not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his actuations as delegate;
otherwise the several provisions of the new Constitution may only satisfy individual or special
interests, subversive of the welfare of the general citizenry. It should be stressed that the
disqualification is not permanent but only temporary only to continue until the final adjournment of
the convention which may not extend beyond one year. The convention that framed the present
Constitution finished its task in approximately seven months — from July 30, 1934 to February 8,
1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being appointed to
any civil office which may have been created or the emolument whereof shall have been increased
while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as
such and to devote all their time to the convention, pursuant to their representation and commitment
to the people; otherwise, his seat in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise "designed to prevent popular political
figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail
the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the
right to public office pursuant to state police power as it is reasonable and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is germane
to the purposes of the law, and applies to all members of the same class.  The function of a delegate
7

is more far-reaching and its effect more enduring than that of any ordinary legislator or any other
public officer. A delegate shapes the fundamental law of the land which delineates the essential
nature of the government, its basic organization and powers, defines the liberties of the people, and
controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in
one or two years. No other public officer possesses such a power, not even the members of
Congress unless they themselves, propose constitutional amendments when acting as a Constituent
Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical
nor repugnant to the sense of justice of the community.

As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the
proposed amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will be elected on the
second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.

This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful
assembly, free expression, and the right of association are neither absolute nor illimitable rights; they
are always subject to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine
whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate
exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

(b) allowing himself to be represented as being a candidate of any

political party or any other organization; and

2. any political party, political group, political committee, civic, religious, professional
or other organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the filing

of his certificate, or

(b) from giving aid or support directly or indirectly, material or

otherwise, favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in par. 1 of
Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to peaceful assembly, because he
cannot be denied any permit to hold a public meeting on the pretext that the provision of said section
may or will be violated. The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The very party or
organization to which he may belong or which may be in sympathy with his cause or program of
reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or
to advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.

It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked by petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity
of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not
too formidable in character. According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate candidates for any elective
public office voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days
immediately preceding an election.
 The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however, as
to render meaningless such a basic right. Their scope of legitimate activities, save
this one, is not unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain its validity. We do
so unanimously.  10

In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an
election campaign or partisan political activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process."  11

Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or party; and (c)
giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec.
50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative declaration that its enactment was
in response to a serious substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation."  ;
12

Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra,
failed to muster the required eight votes to declare as unconstitutional the limitation on the period for
(a) making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office; (b) publishing or distributing campaign literature or
materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A.
4880. 13

The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec.
8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process,"   impressed as it was by the explanation made by the author of R.A. No. 4880, Sen.
14

Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were deemed by the
legislative body to be part and parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and substantive evil of excessive
partisanship, dishonesty and corruption as well as violence that of late has marred election
campaigns and partisan political activities in this country. He did invite our attention likewise to the
well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental
action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or disregarded."  15
But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec.
8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them
equality of chances.   The primary purpose of the prohibition then is also to avert the clear and
16

present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the
poor candidate has an even chance as against the rich candidate. We are not prepared to disagree
with them, because such a conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both Senators stressed that the independent candidate who
wins in the election against a candidate of the major political parties, is a rare phenomenon in this
country and the victory of an independent candidate mainly rests on his ability to match the
resources, financial and otherwise, of the political parties or organizations supporting his opponent.
This position is further strengthened by the principle that the guarantee of social justice under Sec.
V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights,
and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress
Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is equally true that
Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita
when justified by the exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as
expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support."  18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test.  19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which shall
have the task of fashioning a document that shall embody the aspirations and ideals
of the people. Because what is to be amended is the fundamental law of the land, it
is indispensable that the Constitutional Convention be composed of delegates truly
representative of the people's will. Public welfare demands that the delegates should
speak for the entire nation, and their voices be not those of a particular segment of
the citizenry, or of a particular class or group of people, be they religious, political,
civic or professional in character. Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional Amendments, eloquently stated that "the
function of a constitution is not to represent anyone in interest or set of interests, not
to favor one group at the expense or disadvantage of the candidates — but to
 encompass all the interests that exist within our society and to blend them into one
harmonious and balanced whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated or
frustrated, it is necessary that the delegatee thereto be independent, beholden to no
one but to God, country and conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of delegates
who, because they have been chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of the people. Such delegates
could very well be the spokesmen of narrow political, religious or economic interest
and not of the great majority of the people. 20

We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any
party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social, civic, religious, or
professional associations. The ban is germane to the objectives of the law, which are to avert the
debasement of the electoral process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal protection of the laws.

The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation; because it
still has that much built-in advantage as against the individual candidate without similar support.
Moreover, these civic religious and professional organization may band together to support common
candidates, who advocates the reforms that these organizations champion and believe are
imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August
17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own "Timawa"
group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as
their candidates for the convention, which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and working in joint collective effort" they
cannot "exercise effective control and supervision over our 
leaders — the Women's League, the area commanders, etc."; but with their joining with the LP's they
"could have presented a solid front with very bright chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that they should be
exempted from the ban; because then by such exemption they would be free to utilize the facilities of
the campaign machineries which they are denying to the political parties. Whenever all organization
engages in a political activity, as in this campaign for election of delegates to the Constitutional
Convention, to that extent it partakes of the nature of a political organization. This, despite the fact
that the Constitution and by laws of such civic, religious, or professional associations usually prohibit
the association from engaging in partisan political activity or supporting any candidate for an elective
office. Hence, they must likewise respect the ban.

The freedom of association also implies the liberty not to associate or join with others or join any
existing organization. A person may run independently on his own merits without need of catering to
a political party or any other association for support. And he, as much as the candidate whose
candidacy does not evoke sympathy from any political party or organized group, must be afforded
equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal
chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that
the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the invalidation
of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain
the belief that the challenged ban transcends the limits of constitutional invasion of such cherished
immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2,
4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs.

Reyes, J.B.L., Dizon and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Teehankee, J., is on leave.

 
G.R. No. L-35925 January 22, 1973

CHARITO PLANAS, petitioner, 
vs.
COMMISSION ON ELECTIONS, et al., respondents.

CONCEPCION, C.J.:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was
in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree
"has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoñez,
et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No.
L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their
answers "not later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the aforementioned last case - G.R.
No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a short period of
time within which "to submit their notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections — the Court deemed it more imperative
to defer its final action on these cases.

In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent
motion," praying that said case be decided "as soon as possible, preferably not later than January
15, 1973." It was alleged in said motion, inter alia:

6. That the President subsequently announced the issuance of Presidential Decree

No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];

7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose — 

"[1] The New Society;

 "[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the proposed new Constitution and

when (the tentative new date given following the postponement of the
plebiscite from the original date of January 15 are February 19 and
March 5);

"[4] The opening of the regular session slated on January 22 in

accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]

8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: — 

"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under martial law?

"[3] Do you think that Congress should meet again in regular

session?

"[4] How soon would you like the plebiscite on the new Constitution to
be held?" [Bulletin Today, January 5, 1973;

9. That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;

10 That on January 10, 1973, it was reported that one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions would be as follows: — 

"[1] Do you like the New Society?

"[2] Do you like the reforms under martial law?

"[3] Do you like Congress again to hold sessions?

"[4] Do you like the plebiscite to be held later?

"[5] Do you like the way President Marcos is running the affairs of the
government?" [Bulletin Today, January 10, 1973; additional question
emphasis.]

11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies: — 
 "[1] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?

"[2] Do you approve of the new Constitution?

"[3] Do you want a plebiscite to be called to ratify the new

Constitution?

"[4] Do you want the elections to be held in November, 1973 in

accordance with the provisions of the 1935 Constitution ?

"[5] If the elections would not be held, when do you want the next
elections to be called?

"[6] Do you want martial law to continue?" [Bulletin Today, January

11, 1973; emphasis supplied.]

12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;

13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads: — 

"COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it

is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered

the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

QUESTION No. 4
 We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."

Attention is respectfully invited to the comments on "Question No. 3", which reads:
— 

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely: — 

Do you approve of the New Constitution?" — 

in relation to the question following it: — 

"Do you still want a plebiscite to call to ratify the new Constitution?" — 
 would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;

16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;

17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;

18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the
people through the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has been ratified;

19. That, in such a situation, the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.

20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;

21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer that
the proposed plebiscite be prohibited has now collapsed and that a free plebiscite
can no longer be held.

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-
35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and 
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying — 

... that a restraining order be issued enjoining and restraining respondent

Commission on Elections, as well as the Department of LocaI Governments and its
head, Secretary Jose Rono; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all
 other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned,
the so-called Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period comprised between January 10 and
January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental
Urgent Motion.

In support of this prayer, it was alleged — 

3. That petitioners are now before this Honorable Court in order to ask further that
this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of Local
Governments and its head, Secretary Jose Rono; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and reporting
to the President the supposed Citizens' Assemblies referendum results allegedly
obtained when they were supposed to have met during the period between January
10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;

4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because: — 

(a) The elections contemplated in the Constitution, Article XV, at

which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so-called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;

(b) Elections or plebiscites for the ratification of constitutional

amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;

(c) The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so-called Citizens' Assemblies;
 (d) It is seriously to be doubted that, for lack of material time, more
than a handful of the so-called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: — 

"Provincial governors and city and municipal mayors

had been meeting with barrio captains and community
leaders since last Monday (January 8, 1973) to thresh
out the mechanics in the formation of the Citizens'
Assemblies and the topics for discussion," (Bulletin
Today, January 16, 1973).

It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year (Daily Express, January 1, 1971), and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organizations, it is too much to believe that such assemblies
could be organized at such a short notice.

5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because: — 

(a) The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction"

so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86, and the instructions incidental thereto clearly fall
within the scope of this petition;

(b) In their petition, petitioners sought the issuance of a writ of

preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November
30, 1972'; and finally,
 (c) Petitioners prayed for such other relief which may be just and
equitable. (p. 39, Petition).

"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of: — 

"a) Direct and immediate supervision and control over national,

provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ... ."
(Election Code of 1971, Sec. 3).

6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
and democracy, and the petitioners herein because:

(a) After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed Constitution, on the other,
thereby creating confusion, if not chaos;

(b) Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the so-called Citizens'
Assemblies will argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has placed
Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this
Honorable Court.

On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in
said case G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the
case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still
going on — and the public there present that the President had, according to information conveyed
by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the
writer read Proclamation No. 1102 which is of the following tenor:

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a pIebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
 that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.

(Sgd.) FERDINAND E.
MARCOS
President of the
Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

Such is the background of the cases submitted for Our determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way of affirmative defenses: 1) that the "questions raised"
in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had
plenary authority to propose not only amendments but a Constitution which would supersede the
present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for
this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite
under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.

What follows is my own view on these cases.

The first question for Our determination is whether We have authority to pass upon the validity of
Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said
question is a political one. I am of the opinion — on which the Members of the Court are unanimous
— that the contention of the Solicitor General is untenable and that the issue aforementioned is a
justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so
that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a
long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of
the Executive,  but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935
1

Constitution,  which expressly provides for the authority of this Court to review cases involving said
2

issue.

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its
authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution.
Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free to postulate any
amendment it may deem fit to propose — save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people — although insofar only as the
determination of the proposals to be made and formulated by said body is concerned — but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals "are submitted to the
people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.

As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the
Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I
find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained
in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at
any time later, the proper parties may then file such action as the circumstances may justify.

With respect to the question whether or not martial law per se affects the validity of a submission to
the people for ratification of specific proposals for amendment of the Constitution, I consider this
matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised, however, in any of the
cases under consideration, said cases having been filed before the issuance of such Proclamation,
although the petitioners in L-35948 maintain that the issue on the referral of the Proposed
Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question
without the most thorough discussion possible under the circumstances. In fairness to the petitioners
in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of
dismissing the case as moot and academic, said petitioners should be given a reasonable period of
time within which to move in the premises.

Recapitulating the views expressed by the Members of the Court, the result is this:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No.
73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in 
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become
moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art.
XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that that issue involves question of fact which cannot be predetermined, and that Martial
Law per se does not necessarily preclude the factual possibility of adequate freedom for the
purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and

myself are of the opinion that question of validity of said Proclamation has not been
properly raised before the Court, which, accordingly, should not pass upon such
question.

b. Justice Barredo holds that the issue on the constitutionality of Proclamation No.
1102 has been submitted to and should be determined by the Court, and that the
"purported ratification of the Proposed Constitution ... based on the referendum
among Citizens' Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such unfortunate
drawback notwithstanding, "considering all other related relevant circumstances, ...
the new Constitution is legally recognizable and should be recognized as legitimately
in force.

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether
the Proposed Constitution has been ratified by the people or not, "in the absence of
 any judicially discoverable and manageable standards," since the issue "poses a
question of fact.

7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said
Case No. 
L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther
and decide on the merits everyone of the cases under Consideration.

WHEREFORE, all of the aforementioned cases are hereby dismissed, without special
pronouncement as to costs.

It is so ordered.

Makasiar, J., concur.

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.

CONCEPCION, C.J.:

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, 
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and 
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite
cases.

Background of the Plebiscite Cases.

The factual setting thereof is set forth in the decision therein rendered, from which We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was
amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act No. 6132,
approved on August 24, 1970, pursuant to the provisions of which the election of
delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the
Convention was in session on September 21, 1972, the President issued
Proclamation No. 1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed Constitution of the
Republic of the Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention, and appropriating funds therefor," as well as
setting the plebiscite for said ratification or rejection of the Proposed Constitution on
January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R.
No. L-35925, against the Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of guidelines for the
conduct of the same, the prescription of the ballots to be used and the question to be
answered by the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress ...," and "there is no proper
submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no sufficient
time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad

against the Commission on Elections (Case G.R. No. L- 35929) on December 11,
1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of
Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by
Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing (Case
G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R.
No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the
Budget Commissioner, the National Treasurer and the Auditor General (Case G.R.
No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required
to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly heard on Monday,
December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972.
By agreement of the parties, the aforementioned last case — G.R. No. L-35979 —
was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they desire to
stress." Said notes were filed on different dates, between December 21, 1972, and
January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution."

In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its final action on these
cases.

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. 
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said
motion, inter alia:

"6. That the President subsequently announced the issuance of Presidential Decree
No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose — 

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and

when (the tentative new dates given following the postponement of
the plebiscite from the original date of January 15 are February 19
and March 5);

[4] The opening of the regular session slated on January 22 in

accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]

"8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: — 

[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?

[4] How soon would you like the plebiscite on the new Constitution to
be held? [Bulletin Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;

"10. That on January 10, 1973, it was reported that on more question would be
added to the four (4) question previously announced, and that the forms of the
question would be as follows: — 

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

 [5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]

"11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies: — 

[1] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?

[2] Do you approve of the new Constitution?

[3] Do you want a plebiscite to be called to ratify the new

Constitution?

[4] Do you want the elections to be held in November, 1973 in

accordance with the provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next
elections to be called?

[6] Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied]

"12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;

"13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads: — 

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation

in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it

is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered

the plebiscite on the New Constitution.
 If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."

"Attention is respectfully invited to the comments on "Question No. 3," which reads:
—

QUESTION No. 3

The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the

New Constitution? — 

in relation to the question following it: — 

 Do you still want a plebiscite to be
called to ratify the new Constitution?"
—

would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;

"16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;

"18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the
people through the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has been ratified;

"19. That, in such a situation the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.

"20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at
the plebiscite be prohibited has now collapsed and that a free plebiscite can no
longer be held."

At about the same time, a similar prayer was made in a "manifestation" filed by the
petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoñez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution
requiring the respondents in said three (3) cases to comment on said "urgent motion"
and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto,
or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-
35948 riled a "supplemental motion for issuance of restraining order and inclusion of
additional respondents," praying —

"... that a restraining order be issued enjoining and restraining

respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its
 Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to
the President or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph
1 of this Supplemental Urgent Motion."

In support of this prayer, it was alleged — 

"3. That petitioners are now before this Honorable Court in order to ask further that
this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of Local
Governments and its head, Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and reporting
to the President the supposed Citizens' Assemblies referendum results allegedly
obtained when they were supposed to have met during the period between January
10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;

"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because: — 

[a] The elections contemplated in the Constitution, Article XV, at

which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;

[b] Elections or plebiscites for the ratification of constitutional

amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so called Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more

than a handful of the so called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: — 
 "Provincial governors and city and municipal mayors
had been meeting with barrio captains and community
leaders since last Monday [January 8, 1973) to thresh
out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin
Today, January 10, 1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe that such assemblies
could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because: — 

[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions incidental thereto clearly fall
within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of

preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November
30, 1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].

"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of: —

(a) Direct and immediate supervision and control over national,

provincial, city, municipal and municipal district officials required by
 law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
an democracy, and the petitioners herein because:

[a] After the result of the supposed voting on the questions mentioned
in paragraph 1 hereof shall have been announced, a conflict will arise
between those who maintain that the 1935 Constitution is still in
force, on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack
because the advocates of the theory that the proposed Constitution
has been ratified by reason of the announcement of the results of the
proceedings of the so-called Citizens' Assemblies will argue that,
General Order No. 3, which shall also be deemed ratified pursuant to
the Transitory Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction
of this Honorable Court."

On the same date — January 15, 1973 — the Court passed a resolution requiring the
respondents in said case G.R. No. L-35948 to file "file an answer to the said motion
not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing
"on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of this opinion
and said that, upon instructions of the President, he (the Secretary of Justice) was
delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing
in connection therewith was still going on — and the public there present that the
President had, according to information conveyed by the Secretary of Justice, signed
said Proclamation No. 1102, earlier that morning. Thereupon, the writer read
Proclamation No. 1102 which is of the following tenor:

"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.

(Sgd.)
FERDI
NAND
E.
MARC
OS
"Presid
ent of
 the
Philippi
nes

"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

Such is the background of the cases submitted determination. After admitting some
of the allegations made in the petition in L-35948 and denying the other allegations
thereof, respondents therein alleged in their answer thereto, by way affirmative
defenses: 1) that the "questions raised" in said petition "are political in character"; 2)
that "the Constitutional Convention acted freely and had plenary authority to propose
not only amendments but a Constitution which would supersede the present
Constitution"; 3) that "the President's call for a plebiscite and the appropriation of
funds for this purpose are valid"; 4) that "there is not an improper submission" and
"there can be a plebiscite under Martial Law"; and 5) that the "argument that the
Proposed Constitution is vague and incomplete, makes an unconstitutional
delegation of power, includes a referendum on the proclamation of Martial Law and
purports to exercise judicial power" is "not relevant and ... without merit." Identical
defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the aforementioned
cases and, after extensive discussions on the merits thereof, have deemed it best
that each Member write his own views thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on the points in issue. Hence, the
individual views of my brethren in the Court are set forth in the opinions attached
hereto, except that, instead of writing their separate opinions, some Members have
preferred to merely concur in the opinion of one of our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after
which he recapitulated the views of the Members of the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of

Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,

Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion
that the issue has become moot and academic, whereas Justices Barredo, Makasiar
and Antonio voted to uphold the validity of said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed

Constitution or to incorporate therein the provisions contested by the petitioners in L-
35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue
has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio
and myself have voted to uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold
the same view.

5. On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra
are of the opinion that issue involves questions of fact which cannot be
predetermined, and that Martial Law per se does not necessarily preclude the factual
possibility of adequate freedom, for the purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,

Esguerra and myself are of the opinion that the question of validity of
said Proclamation has not been properly raised before the Court,
which, accordingly, should not pass upon such question.

b. Justice Barredo holds that the issue on the constitutionality of

Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related
relevant circumstances, ... the new Constitution is legally
recognizable and should be recognized as legitimately in force."

c. Justice Zaldivar maintains unqualifiedly that the Proposed

Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the
issue whether the Proposed Constitution has been ratified by the
people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.

7. On the question whether or not these cases should be dismissed, Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative,
for the reasons set forth in their respective opinions. Justices Fernando, Teehankee,
and the writer similarly voted, except as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a reasonable period of time within which to
file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the
petitioners in said Case No. L-35948 for the aforementioned purpose, but he
believes, in effect, that the Court should go farther and decide on the merits
everyone of the cases under consideration.
Accordingly, the Court — acting in conformity with the position taken by six (6) of its members,  with
1

three (3) members dissenting,  with respect to G.R. No. L-35948, only and another
2

member  dissenting, as regards all of the cases dismissed the same, without special pronouncement
3

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 February 3, 1973, by Eddie Monteclaro, personally and as
4

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 on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
5

Asodisen, Jr. and Raul M. Gonzales,  against the Executive Secretary, the Secretary of National
6

Defense, the Budget Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,  Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority
7

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  would expire on December 31, 1975, and that of the others  on December 31, 1977; that
8 9

pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must convene
for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along
with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same
having been closed by the authorities in physical possession and control the Legislative Building";
that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were
ordered cleared by the same authorities, and no one was allowed to enter and have access to said
premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the
law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that
the petitioners ready and willing to perform their duties as duly elected members of the Senate of the
Philippines," but respondent Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from performing their duties as
duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the
Philippines Building ... are occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official reports, the Department
of General Services ... is now the civilian agency in custody of the premises of the Legislative
Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude
and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged
approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens'
Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the alleged creation of the
Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the
Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President
and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the performance of their duties and functions as such
officers under the law and the Rules of the Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which reference has been made in the
preceding pages, the Supreme Court dismissed said cases on January 22, 1973, by a majority vote,
upon the ground that the petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can not have
superseded and revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents, representatives and
subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and
... continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel
them to comply with the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy
and adequate remedy in the ordinary course of law except by invoking the equitable remedies
of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction."

Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the
merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the ... Secretary of General Service, as well as all their agents, representatives and
subordinates to vacate the premises of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of prohibition and mandamus, as
prayed for against above-mentioned respondents, and making the writ injunction permanent; and
that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them
to comply with their duties and functions as President and President Pro Tempore, respectively, of
the Senate of Philippines, as provided by law and the Rules of the Senate."

Required to comment on the above-mentioned petitions and/or amended petitions, respondents

filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or
amended petitions, alleging that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose submitting to them the matter of
ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed
constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a
maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions
raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial
compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the
election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the
1935 Constitution is not exclusive of other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on
the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as
motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time
as L-36236. On that date, the parties in G.R. No. L-36283   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 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 treaty is entered into by the President with the concurrence of the
12

Senate,   which is not required in the case of rules, regulations or executive orders which are
13

exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in
the Supreme Court than that required to invalidate a law or treaty.

Although the foregoing refers to rules, regulations and executive orders issued by the President, the
dictum applies with equal force to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:

Administrative acts and commands of the (Governor-General) President of the

Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to
have or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in
an executive proclamation, with all the force of an executive order. 
14

In fact, while executive order embody administrative acts or commands of the President, executive
proclamations are mainly informative and declaratory in character, and so does counsel for
respondents Gil J. Puyat and Jose Roy maintain in G.R. No. 
L-36165.   As consequence, an executive proclamation has no more than "the force of an executive
15

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 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 respondents therein
18

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 authority
19

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. Castañeda,   insofar as it adhered to
20 21

the former case, which view We, accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections,   the 22

political-question theory adopted in Mabanag v. Lopez Vito.   Hence, respondents herein urge Us to
23

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 powers by
the other departments. Hence, the appointing power of the Executive, his pardoning power, his veto
power, his authority to call the Legislature or Congress to special sessions and even to prescribe or
limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof — such as the commission on Appointments — may approve
or disapprove some appointments made by the President. It, also, has the power of appropriation, to
"define, prescribe, and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the Constitution, the
"Supreme Court and ... such inferior courts as may be established by law," may settle or decide with
finality, not only justiciable controversies between private individuals or entities, but, also, disputes or
conflicts between a private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service, when the latter officer
or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And
so, when a power vested in said officer or branch of the government is absolute or unqualified, the
acts in the exercise of such power are said to be political in nature, and, consequently, non-
justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon
themselves a power conferred by the Constitution upon another branch of the service to the
exclusion of the others. Hence, in Tañada v. Cuenco,   this Court quoted with approval from In re
26

McConaughy,   the following:

27

"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no jurisdiction as
 the certificate of the state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a fundamental one; but
it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.

xxx xxx xxx

"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32
Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A.
90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass law or submit
a proposed constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political questions, but
because they are matters which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the limits of the power conferred.
His discretionary acts cannot be controllable, not primarily because they are of a
politics nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under constitutional government must act
accordingly to law and subject its restrictions, and every departure therefrom or
disregard thereof must subject him to that restraining and controlling power of the
people, acting through the agency of the judiciary; for it must be remembered that
the people act through courts, as well as through the executive or the Legislature.
One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations
which the law places upon all official action. The recognition of this principle,
unknown except in Great Britain and America, is necessary, to "the end that the
government may be one of laws and not of men" — words which Webster said
were the greatest contained in any written constitutional document." (Emphasis
supplied.)

and, in an attempt to describe the nature of a political question in terms, it was hoped,
understandable to the laymen, We added that "... the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum
(supra), it refers to "those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularly
those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial
inquiry into such issue and the settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are under the ineluctable obligation — made
particularly more exacting and peremptory by our oath, as members of the highest Court of the land,
to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson,   it was
28

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 — speaking through
29

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 under
31

consideration is non-justiciable in nature. Neither the factual background of that case nor the action
taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under
consideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States
against Borden and others for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands of a superior officer,
because Luther and others were engaged in a conspiracy to overthrow the government by force and
the state had been placed by competent authority under Martial Law. Such authority was the charter
government of Rhode Island at the time of the Declaration of Independence, for — unlike other
states which adopted a new Constitution upon secession from England — Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.

Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the drafting of a new Constitution
to be submitted to the people for their adoption or rejection. The convention was not authorized by
any law of the existing government. The delegates to such convention framed a new Constitution
which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and
became the paramount law and Constitution of Rhode Island.

The charter government, which was supported by a large number of citizens of the state, contested,
however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to assert authority by force of
arms, and many citizens assembled to support him. Thereupon, the charter government passed an
Act declaring the state under Martial Law and adopted measures to repel the threatened attack and
subdue the rebels. This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in the support of the rebel
government — which was never able to exercise any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the
existing form of government. Eventually, a new constitution was drafted by a convention held under
the authority of the charter government, and thereafter was adopted and ratified by the people.
"(T)he times and places at which the votes were to be given, the persons who were to receive and
return them, and the qualifications of the voters having all been previously authorized and provided
for by law passed by the charter government," the latter formally surrendered all of its powers to the
new government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old government, no further effort was
made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices
of the charter government — "went into operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience throughout the state ... ."

Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by
the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the
action of the Circuit Court, stating:

It is worthy of remark, however, when we are referring to the authority of State

decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843
went into operation. The judges who decided that case held their authority under that
constitution and it is admitted on all hands that it was adopted by the people of the
State, and is the lawful and established government. It is the decision, therefore, of a
State court, whose judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the sanction and
laws of the charter government.

The point, then, raised here has been already decided by the courts of Rhode Island.
The question relates, altogether, to the constitution and laws of that State, and the
well settled rule in this court is, that the courts of the United States adopt and follow
the decisions of the State courts in questions which concern merely the constitution
and laws of the State.

Upon what ground could the Circuit Court of the United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the
courts of Rhode Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States which do not belong to
the State courts. But the power of determining that a State government has been
lawfully established, which the courts of the State disown and repudiate, is not one of
them. Upon such a question the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the charter government as
the lawful and established government during the time of this contest.  32

It is thus apparent that the context within which the case of Luther v. Borden was decided is basically
and fundamentally different from that of the cases at bar. To begin with, the case did not involve a
federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound
to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted
under the authority of the charter government. Whatever else was said in that case constitutes,
therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of
Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure
of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a
unitary form of government, under which our local governments derive their authority from the
national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island
contained no provision on the manner, procedure or conditions for its amendment.

Then, too, the case of Luther v. Borden hinged more on the question of recognition of government,
than on recognition of constitution, and there is a fundamental difference between these two (2)
types of recognition, the first being generally conceded to be a political question, whereas the nature
of the latter depends upon a number of factors, one of them being whether the new Constitution has
been adopted in the manner prescribed in the Constitution in force at the time of the purported
ratification of the former, which is essentially a justiciable question. There was, in Luther v. Borden,
a conflict between two (2) rival governments, antagonistic to each other, which is absent in the
present cases. Here, the Government established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the
people.

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849,
on matters 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 an action to annul a Tennessee statute apportioning
34

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 Court, speaking through then Chief Justice Warren,
35

reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring thereunder that he — whose
qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S.
Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the
Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the
matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A
thereof.

After an, exhaustive analysis of the cases on this subject, the Court concluded:

The authorities are thus practically uniform in holding that whether a constitutional

amendment has been properly adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute 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 the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to either February 19 or
March 5, 1973."  38

The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been
set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy — although more will be said later about them — and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the other cases.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:

1. That the amendments to the Constitution be proposed either by Congress or by a convention

called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164
question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the
draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on
whether or not the last two (2) requirements have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be
taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not

otherwise disqualified by law, who are twenty-one years of age or over and are able
to read and write, and who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six months preceding the
election. The National Assembly shall extend the right of suffrage to women, if in a
plebiscite which shall be held for that purpose within two years after the adoption of
this Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

 Section 1. There shall be an independent Commission on Elections composed of a
Chairman and two other Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for a term of nine years
and may not be reappointed. ...

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the

enforcement and administration of all laws relative to the conduct of elections and
shall exercise all other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose of insuring fee, orderly, and
honest elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.

xxx xxx xxx  39

a. Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the
right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the municipality wherein they propose to
vote for at least six months preceding the election," may exercise the right of suffrage in the
Philippines. Upon the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and
none of the disqualifications, prescribed by law, and that said right may be vested by competent
authorities in persons lacking some or all of the aforementioned qualifications, and possessing some
of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the
language — "(s)uffrage may be exercised" — used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6
thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered
in the list of barrio assembly members, shall be members thereof and may participate as such in the
plebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise
the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise
such right. This view is borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the
report of the committee on suffrage of the Convention that drafted said Constitution which report
was, in turn, "strongly influenced by the election laws then in force in the Philippines ... ."   " 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 the permissive language
42

used in the first sentence of said Art. V. Despite some debates on the age qualification —
amendment having been proposed to reduce the same to 18 or 20, which were rejected, and the
residence qualification, as well as the disqualifications to the exercise of the right of suffrage — the
second recommendation limiting the right of suffrage to those who could "read and write" was — in
the language of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily
approved in the Convention without any dissenting vote," although there was some debate on
whether the Fundamental Law should specify the language or dialect that the voter could read and
write, which was decided in the negative.  43

What is relevant to the issue before Us is the fact that the constitutional provision under
consideration was meant to be and is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned, which in turn, constitute
a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant — and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and having the disqualifications
mentioned in the Constitution the right of suffrage.

At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of
section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in
the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly
amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of
1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917 — Act 2711
— as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927.
Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below.   In all of these legislative acts, the provisions
44

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, of prohibition and injunction therein applied for, upon the ground that,
45

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 which the "majority
46

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
47

barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be
citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election, duly registered in the list of voters"
and " otherwise disqualified ..." — just like the provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."

I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of
the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also,
because provisions of a Constitution — particularly of a written and rigid one, like ours generally
accorded a mandatory status — unless the intention to the contrary is manifest, which is not so as
regards said Art. V — for otherwise they would not have been considered sufficiently important to be
included in the Fundamental Law of the land.   Besides, it would be illogical, if not absurd, believe
48

that Republic Act No. 3590 requires, for the most important measures for which it demands — in
addition to favorable action of the barrio council — the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which
such plebiscite need not be held.

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V
thereof to apply only to elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that
the object thereof much more important — if not fundamental, such as the basic changes introduced
in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many decades, and to affect the way of life of
the nation — and, accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers,   whose average term ranges from 2
49

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 they are disqualified under the provisions of said Constitution and
50

Code,   or those of Republic Act No. 3590,  have participated and voted in the Citizens' Assemblies
51 52

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 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 Constitution,
59

second only to that of the Auditor General  ; by providing that they may not be removed from office
60

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 61

"(n)o 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 members
62

"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
63

of the amendment to the original Constitution of 1935 endeavored to do everything possible protect
and insure the independence of each member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all laws
relative to the conduct of elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those involving the right to
vote, all administrative question affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on one hand, and the other
offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law
enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections."
Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below.   Moreover, said Act contains, inter alia, detailed
64

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 votes, openly, without complying with the
65

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 the case of bar, express any opinion) was issued, calling a
66

plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to
the people for ratification or rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding right and obligations of political parties
and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election
Code of 1971 provides that "(a)ll elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated
January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and
no other order or decree has been brought to Our attention, expressly or impliedly repealing the
provisions of Presidential Decree 73, insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or
instructions suspended by General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73 outlining
the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution
— remained in force, assuming that said Decree is valid.

It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below   —
67

the Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies
"shall be considered in the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision"; that such Citizens' Assemblies "shall
consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and
others in the future, which shall serve as guide or basis for action or decision by the national
government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973,
a referendum on important national issues, including those specified in paragraph 2 hereof, and
submit the results thereof to the Department of Local Governments and Community Development
immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections
or its participation in the proceedings in said Assemblies, if the same had been intended to constitute
the "election" or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A
directing the immediate submission of the result thereof to the Department of Local Governments
Community Development is not necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its "exclusive authority over the
enforcement and administration of all laws to the conduct of elections," if the proceedings in the
Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection of
the proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B,
dated 1973, ordering "that important national issues shall from time to time; be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of ratification of the
Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of
Local Governments and Community Development shall insure the implementation of this order." As
in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude exercise of the powers vested by the 1935 Constitution in the Commission on Elections,
even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does
not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof.

The point is that, such of the Barrio Assemblies as were held took place without the intervention of
the Commission on Elections, and without complying with the provisions of the Election Code of
1971 or even of those of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department sought to be
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the
1935 Constitution would be favored thereby, owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII
of the proposed Constitution, without any elections therefor. And the procedure therein mostly
followed is such that there is no reasonable means of checking the accuracy of the returns files by
the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly,
and honest" expression of the people's will, the aforementioned violation thereof renders null and
void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same
are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that which
is usually and ordinarily understood by the term, is a choosing or as election by those having a right
to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any
public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac.
732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary.  68

IV

Has the proposed Constitution aforementioned 

been approved by a majority of the people in 
Citizens' Assemblies allegedly held 
throughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is
precisely being contested by petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that
the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming"
majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied
with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides
and from its power are derived.

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on
which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of
Minnessota has aptly put it — 

... every officer under a constitutional government must act according to law and

subject to its restrictions, and every departure therefrom or disregard thereof must
subject him to the restraining and controlling of the people, acting through the
agency of the judiciary; for it must be remembered that the people act through courts,
as well as through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places upon all official
action. ... .

Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his
authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed amendment, or revision
of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as
"elections".

The Solicitor General stated, in his argument before this Court, that he had been informed that there
was in each municipality a municipal association of presidents of the citizens' assemblies for each
barrio of the municipality; that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations; that the president of each
one of these provincial or city associations in turn formed part of a National Association or
Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens'
assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of the citizens' assemblies in
their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted
the results of the voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens' assemblies throughout the
Philippines and then turned them over to Mr. Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation No. 1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972,
so that he could possibly have been a member on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National
Association or Federation of Presidents of any such provincial or city associations.

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of
this Court of same date, the Solicitor General was asked to submit, together with his notes on his
oral argument, a true copy of aforementioned report of Mr. Cruz to the President and of
"(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization" of said municipal, provincial and national
associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of
said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and 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
69

not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said
resolution.   If assailed directly in appropriate proceedings, such as an election protest, if and when
70

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 prior to the creation of the
71

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 point. "As the Constitution stood from the
72

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 statement of results of the election made by the
73

canvassing board, in order that the true results could be judicially determined. And so did the court
in Rice v. Palmer.  74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission
on Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation
No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local Governments had certified to
the President the alleged result of the citizens' assemblies all over the Philippines — it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed Constitution.

Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of
the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even
been, ratified in accordance with said proposed Constitution, the minimum age requirement therein
for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of
the proposed Constitution requires "secret" voting, which was not observed in many, if not most,
Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a
"majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or
revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes
cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens'
Assemblies.  75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV
of the Constitution has not been complied with, and since the alleged substantial compliance with
the requirements thereof partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense — which, if true, should be within their peculiar
knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step would be to give due
course to these cases, require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the determination of the
issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving
a defense set up by the respondents, who have not so far established the truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample
reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:

Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.

In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its final action on these
cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 —
four (4) days after the last hearing of said cases   — the President announced the postponement of
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the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after
consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the
sufficiency of the time available to translate the proposed Constitution into some local dialects and to
comply with some pre-electoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further
notice." How can said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites,"
in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the
proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20?
Under these circumstances, it was only reasonable for the people who attended such assemblies to
believe that the same were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.

And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies,
namely:

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?

[7] Do you approve of the new Constitution?

[8] Do you want a plebiscite to be called to ratify the new Constitution?

[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?

[10] If the elections would not be held, when do you want the next elections to be
called?

[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the
language of question No. 7 — "Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act, which the first person,
however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the
proposed Constitution would have become effective and no other plebiscite could be held thereafter
in connection therewith, even if the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens' assemblies in many parts of
Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B.
Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:

... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to
change the questions, we urgently suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of guidelines and
materials to be used.

On January 11, ... another instruction from the top was received to include the
original five questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us with enough hands
to trouble shoot and implement sudden changes in the instructions anytime and
anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their

preference and readiness to accept this new method of government to
people consultation in shaping up government policies.

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens'
Assembly meetings ..." and call all available officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top
was received to include the original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to people consultation in
shaping up government policies."

This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had
still to discuss — not put into operation — means and ways to carry out the changing instructions
from the top on how to organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no
more than consultations or dialogues between people and government — not decisions be made by
the people; and 3) that said consultations were aimed only at "shaping up government policies" and,
hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.

If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11,
1973, one can easily imagine the predicament of the local officials and people in the remote barrios
in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families and their household,
although duly registered voters in the area of Greater Manila, were not even notified that citizens'
assemblies would be held in the places where their respective residences were located. In the
Prohibition and Amendment case,   attention was called to the "duty cast upon the court of taking
77

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 to shut its eyes to
78

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.

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has been run, since January
17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised Constitution; that our foreign relations
are being conducted under such new or revised Constitution; that the Legislative Department has
recognized the same; and that the people, in general, have, by their acts or omissions, indicated
their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to
the offices under the Executive Department. In a sense, the latter performs some functions which,
from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our Government, and even in
devising administrative means and ways to better carry into effect. Acts of Congress which define
the goals or objectives thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly,
to the Executive. This, notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid Constitution with a
republican system of Government like ours — the role of that Department is inherently, basically and
fundamentally executive in nature — to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution.  79

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something
that cannot legally, much less necessarily or even normally, be deduced from their acts in
accordance therewith, because the are bound to obey and act in conformity with the orders of the
President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under
Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President
thereafter, he had assumed all powers of Government — although some question his authority to do
so — and, consequently, there is hardly anything he has done since the issuance of Proclamation
No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the overwhelming majority of the people — that he
could not do under the authority he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its personnel, which said proposed
Constitution would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the aforementioned Constitution is
disputed.

Then, again, a given department of the Government cannot generally be said to have
"recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts
of another. Accordingly, when a subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no
act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth   — cited by respondents herein in support
80

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, 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,
82

headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed". Then,
in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse
groups involved in a conspiracy to undermine" his powers" under martial law to desist from
provoking a constitutional crisis ... which may result in the exercise by me of authority I have not
exercised."

No matter how good the intention behind these statement may have been, the idea implied therein
was too clear an ominous for any member of Congress who thought of organizing, holding or taking
part in a session of Congress, not to get the impression that he could hardly do so without inviting or
risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding
that the failure of the members of Congress to meet since January 22, 1973, was due to their
recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or
its alleged ratification.

For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation
No. 1102. In the words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation."   The failure to use the gun
83

against those who comply with the orders of the party wielding the weapon does not detract from the
intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at others, without pulling the
trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed
it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we
consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form
of government introduced in the proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the world, and that even experienced lawyers
and social scientists find it difficult to grasp the full implications of some provisions incorporated
therein.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the
same refers to a document certified to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative
measures approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive
upon the President and the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President
of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association,
which even prepared the draft of said legislation, as well as lobbied actually for its approval, for
which reason the officers of the Association, particularly, its aforementioned president — whose
honesty and integrity are unquestionable — were present at the deliberations in Congress when the
same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the
answer would have to be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and, hence, his certification is
legally, as good as non-existent.

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and
Community Development about the tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines — and the records do not show that any such certification, to
the President of the Philippines or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association presidents of barrio or ward
assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the
department which, according to Article X of the Constitution, should not and must not be all
participate in said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United States v. Sandoval,   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 pages hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat
and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in
our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers of the Senate.

In all other respects and with regard to the other respondent in said case, as well as in cases L-
36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due
course, there being more than prima facie showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has
been acquiesced in by the people or majority thereof; that said proposed Constitution is not in
force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they might consider to be
the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware
of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a
hierarchy, a rule of priority.

We must realize that the New Society has many achievements which would have been very difficult,
if not impossible, to accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule
of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship
itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual opinions and/or
concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues,
a resume or summary of the votes cast by each of them.

It should be stated that by virtue of the various approaches and views expressed during the
deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of course that each member of the
Court would expound in his individual opinion and/or concurrence his own approach to the stated
issues and deal with them and state (or not) his opinion thereon singly or jointly and with such
priority, qualifications and modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.

The five questions thus agreed upon as reflecting the basic issues herein involved are the following:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-
justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with
substantial, if not strict, compliance) conformably to the applicable constitutional and statutory
provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by
the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in
their respect opinions and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity
of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and
Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second
question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether or not there has actually
been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the
people's will, but, in negative, the Court may determine from both factual and legal angles whether or
not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra,
or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial
inquiry."

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an
election or plebiscite held in accordance with law and participated in only by qualified and duly
registered voters. 87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been
validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding
the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the
manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof.
In view, however, of the fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am
constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did the part required of
them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after
all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their
view there has been in effect substantial compliance with the constitutional requirements for valid
ratification.

3. On the third question of acquiescence by the Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the
people have already accepted the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions
to the effect that independently of the validity of the ratification, a new Constitution once accepted
acquiesced in by the people must be accorded recognition by 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
90

unavoidable."  91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted
to deny respondents' motion to dismiss and to give due course to the petitions.

5. On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered
in force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

ANNEX A

PERTINENT PORTIONS

OF THE

MINNESSOTA SUPREME COURT

DECISION

ON THE CASE

IN RE McCONAUGHY

"(a) An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96
S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio
St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W.
779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind.
104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional requirement that every amendment
must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450;
State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19
Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form
of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78,
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho,
154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).

In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the
determination of the question whether an amendment to the Constitution has been carried involves
the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any
purported amendment by the executive or any executive department is final, and that the action
cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a
proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the
state no amendment can become a part of the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."

"In considering the cases it is necessary to note whether in the particular case the court was called
upon to determine between rival governments, or whether the Legislature, or some board or official,
had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo.
303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the
Constitution, could change the Constitution only in the manner prescribed by it, and that it was the
duty of the court to determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in
convention or in a mode described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that
certain acts are to be done, certain requisitions are to be observed, before a change can be effected;
but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any
other department of the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every amendment which is shown not to
have been made in accordance with the rules prescribed by the fundamental law.'

"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form
an original Constitution, or abrogate an old one and form a new one, at any time, without any
political restriction, except the Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in existence, they can do it only
by the method pointed out by the Constitution to which the amendment is added. The power to
amend a Constitution by legislative action does not confer the power to break it, any more than it
confers the power to legislate on any other subject contrary to its prohibitions.' So, in State v. Timme,
54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the
state without a compliance with the provisions thereof, both in the passage of such amendment by
the Legislature and the manner of submitting it to the people. The courts have not all agreed as to
the strictness of compliance which should be required.

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an
amendment to the Constitution had been legally adopted. After approving the statement quoted
from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an
other mode than by a convention, every requisite which is demanded by the instrument itself must
be observed, and the omission of any one is fatal to the amendment,' the court held that, 'as
substance of right is grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should control, or that any
particular officers or board would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These methods had been followed in
the adoption of previous amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of
the very uncertainty of such provision the past legislative history of similar propositions,
the universal prior acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of the question of the
amendment for decision, and in view of the duty cast upon the court taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution. The effect was to hold that
a provision of the Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.)
110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep.
34. But it has not been universally accepted.

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas
case said: 'The reasoning by which the learned court reached the conclusion it did is not based
on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can
command our assent or approval. The argument is illogical, and based on premises which
are without any sound foundation, and rests merely on assumption.' See, also, the well-considered
case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the
jurisdiction of the court to determine whether, in submitting a proposed amendment to the people,
the Legislature legally observed the constitutional provisions as to the manner of procedure.
In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a
citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the ground that the
Legislature had not acted in conformity with the Constitution and that the proposed amendment was
of such a character that it could not properly become a part of the Constitution. The Supreme Court
of Colorado, in People v. Sours, supra, refused to exercise this authority.

"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738,
15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before
its submission, been entered in full upon the legislative journals, as required by the Constitution, and
it was held that this was a material variance in both form and substance from the constitutional
requirements, and that the amendment did not, therefore, become a part of the Constitution. As to
the claim that the question was political, and not judicial, it was said that, while it is not competent for
courts to inquire into the validity of the Constitution and the form of government under which they
themselves exist, and from which they derive their powers, yet, where the existing Constitution
prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method; and it is the duty of the courts in a proper case, when an
amendment does not relate to their own power or functions, to inquire whether, in the adoption of
the amendment, the provisions of the existing Constitution have been observed, and, if not, to
declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113
Iowa, 250, 84 N.W. 1064.

"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution
had been legally adopted was treated as a judicial question. By the Constitution a proposed
amendment was required to be approved by Legislatures before its submission to the people. In this
instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and
adopted 8 of the amendments, and submitted them to the people. The majority of the people voted
for their adoption; but it was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should approved by both Legislatures, and
that it did not follow because the second Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted
upon the second in the form adopted by the first body. The substance of the contention was that
there had not been a concurrence of the 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 and adopted by a majority of the qualified voters voting at election,
as required by the Constitution. The law did direct how the result of the election should be
determined. The Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said
amendment be, and hereby is, inserted into the Constitution of the state of Mississippi as a part of
the Constitution.' In fact, the amendment was not submitted in the manner prescribed by the
Constitution, and it did not receive a majority of all the qualified voters voting at the election. It was
argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature, and
from the very nature of the thing the Legislature must be the exclusive judge of all questions to be
measured or determined by these rules. Whether the question be political, and certainly a legislative
one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but of
final judgment as well, confides to the separate magistracy of the legislative department full power to
hear, consider, and adjudge that question. The Legislature puts the question to
the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the
Legislature that its question has been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no authority to speak at any
stage of the proceedings between the sovereign and the Legislature, and when the matter is thus
concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held
that the question whether the proposition submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the requirements of the Constitution, and
whether the proposition was in fact adopted, were all judicial, and not political, questions. 'We do
not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution. We
could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed
upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged."

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of
the judicial department of the government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an interesting and well-considered one. The
Constitution provided the manner in which proposed amendments should be submitted to the
people, but did not provide a method for canvassing the votes. The Legislature having agreed to
certain proposed amendments, passed an act for submitting the same to the people. This statute
provided for the transmission to the Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time summon four or
more Senators, who, with the Governor, should constitute a board of state canvassers to canvass
and estimate the votes for and against each amendment. This board was to determine and declare
which of the proposed amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and "any proposed amendment, which by said certificate and determination
of the board of canvassers shall appear to have received in its favor the majority of all the votes cast
in the state for and against said proposed amendment, shall from the time of filing such certificate be
and become an amendment to and a part of the Constitution of the state; and it shall be the duty of
the Governor of the state forthwith, after such a determination, to issue a proclamation declaring
which of the said proposed amendments have been adopted by the people." This board was
required to file a statement of the result of the election, and the Governor to issue his proclamation
declaring that the amendment had been adopted and become a part of the Constitution. At the
instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for
review the statement of the results of the election made by the canvassing board, in order that it
might be judicially determined whether on the facts shown in that statement the board had legally
determined that the proposed amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department of the government in
their respective official functions placed the subject-matter beyond the cognizance of the judicial
department of the state. The Court of Appeals, after a full review of the authorities, reversed this
decision, and held that the questions were of a judicial nature, and properly determinable by the
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that
there was present in the Supreme Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the legislative department and
its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to
annul their acts in case that they have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The court, after considering the case
on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question
which we have under consideration. In reference to the contention that the Constitution intended to
delegate to the Speaker of the House of Representatives the power to determine whether an
amendment had been adopted, and that the question was political, and not judicial, the court
observed: "The argument has often been made in similar cases to the courts, and it is found in many
dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion."

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional
requirement of publication of a proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."

ANNEX B

MALACAÑANG

MANILA
BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them
for resolution important national issues;

WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as a
plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership
in political, economic and social fields, and that it is now necessary to bring this down to the level of
the people themselves through the Barangays or Citizens Assemblies;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby order that important national issues shall from
time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall include the
matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Government and Community Development shall insure
the implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and
seventy-three.

(SGD.) FERDINAND
E. MARCOS

By the President:

(SGD.) ALEJANDRO MELCHOR

Executive Secretary

 
G.R. No. L-56503 April 4, 1981

RAMON MITRA, JR., NAPOLEON RAMA, EMMANUEL T. SANTOS, ERNIE RONDON, ANTONIO
MARTINEZ, JEJOMAR BINAY, RODRIGO H. MELCHOR, JOAQUIN (Titong) ROCES, RAFAEL
YAP, and MEL LOPEZ, petitioners, 
vs.
COMMISSION ON ELECTIONS, respondent.

FERNANDO, CJ.:

In essence, this petition for mandamus and prohibition is not dissimilar from the prohibition
proceedings just dismissed filed respectively by former delegates Samuel C. Occena and Ramon A.
Gonzales.   All three suits proceed on the assumption that the present Constitution is not in force
1

and effect. There is this variation. In the last two paragraphs of this petition, the plea is made for the
holding of a plebiscite so that the people may vote on the ratification of the Constitution, now in
force, but as, to them still in the stage of proposal. In the event it is rejected, so their thinking goes,
then the 1935 Constitution, which in the view of petitioners was suspended by the establishment of
an authoritarian regime by the Commander-in-Chief of the Armed Forces after the proclamation of
martial law, could be once more operative with the lifting of martial law on January 17, 1981. As in
the Occena and Gonzales petitions, there is what was therein referred to as a "rather unorthodox
aspect" in "the assertion that the 1973 Constitution is not the fundamental law, the Javellana ruling
to the contrary notwithstanding."   This excerpt from the opinion is, therefore, fully applicable: "To put
2

it at its mildest, such an approach has the arresting charm of novelty – but nothing else. It is in fact
self-defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as
Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here
would be, quite clearly, an exercise in futility." 
3

A similar judgment is thus indicated. The petition must be dismissed. If there is a further expression
of view on the part of the Court, it is to clear the misapprehension that seems to be current in certain
legal quarters about the import of the Javellana decision   and the role of the President as
4

Commander-in-Chief during the period of martial law. 

1. What is the ruling in Javellana v. Executive Secretary?   Rightfully, it is ranked by eminent jurists
5

and academicians abroad as one of the most significant manifestations of the exercise of the
function of judicial review. Apparently, this awesome and delicate power has implications still not
adequately grasped. By virtue of this prerogative, the Supreme Court either checks or legitimates the
acts of a coordinate department, challenged in an appropriate legal proceeding. The decision
rendered then, whether one of approval or of rejection, of validity or of unconstitutionality, is
controlling. To go back to Javellana v. Executive Secretary. The ruling cannot be any clearer. The
dispositive portion reads: "[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."   As far as there being "no further judicial
6

obstacle" to the operative character of the 1973 Constitution, there can be no doubt that such is the
view of eight of the ten members of the Court. Petitioners apparently did not take note of the
immediately preceding paragraph of the opinion of the then Chief Justice Concepcion, who, while
one of the dissenters, spoke for the Court on the voting: "On the fifth question of whether the new
Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof; Four (4)
members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote
thereon on the premise stated in their votes on the third question that they could not state with
judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2)
members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by
the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to
declare that the new Constitution is not in force."   Both the statements of "there being no further
7

judicial obstacle" as well as the negative form in which mention is made of there being "not enough
votes to declare that the new Constitution" is not in force reflect the traditional mode in which
constitutional issues are passed upon in accordance with the American concept of judicial review.
The function of judicial review, as observed by Justice Laurel in the leading case of Angara v.
Electoral Commission,   reflects the adoption of the American type of constitutional government
8

"where the written constitution is interpreted and given effect by the judicial department."   In the
9

event therefore that the decision rendered may give rise to doubts and perplexities, there is comfort
and assurance in the thought expressed by the same eminent jurist in another leading case
of Villena v. Secretary of Interior:   "Familiarity with the essential background of the type of
10

government established under our Constitution, in the light of certain well-known principles and
practices that go with the system, should offer the necessary explanation."   One of such practices is
11

the manner in which the dispositive portion of a decision in a suit contesting the validity of a
legislative or executive act is worded. It was noted that Justice Holmes had a penchant for the
double negative. A favorite phrase of his was that the statute "was not unconstitutional." That is of
the essence of judicial review. For one of its basic postulates is the presumption of validity. The
burden of proof is thus on the person assailing the action taken by a coordinate branch. There is no
need therefore of an affirmative finding as to its being constitutional. It suffices that it has not been
shown to be otherwise. It is likewise by virtue of such presumption that Justice Malcolm correctly
asserted: "To doubt is to sustain."   Scholars in the field of constitutional law have even gone further.
12

They maintain that when the Supreme Court or some members thereof whose votes are crucial
deem the question raised as a political   and not judicial resulting in the dismissal of the action, there
13

was, even then, a manifestation of the power of judicial review at work. The Court, by ruling that it
was without jurisdiction, allowed the political branches to have their way. In that sense, to use a
favorite phrase of Thomas Reed Powell, the Court was silently vocal and not silently silent. In
Javellana, the Court assumed jurisdiction, but only two of the ten members then were of the view
and so voted that the 1973 Constitution is not in force. There is no affront to logic, it would seem, for
us to dismiss the petitions and accordingly rule that "there is no further judicial obstacle to the new
Constitution being considered in force and effect." As was pointed out in the joint decision in the
Occena and Gonzales petitions: "That is the meaning of the concluding statement in Javellana.
Since then, this Court has invariably applied the present Constitution. The latest case in point
is People v. Sola, promulgated barely two weeks ago. During the first year alone of the effectivity of
the present Constitution, at least ten cases may be cited."  14

2. Nor is this all. The scholarly opinion of then Chief Justice Roberto Concepcion, while in dissent,
acknowledged that even without valid ratification, a new Constitution could come into force and
effect by the acquiescence of the people, referring in particular to the leading case of Taylor v.
Commonwealth.   Other cases may be cited.   There is this excerpt in a separate opinion in
15 16

Javellana: "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 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 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 them, as Corwin did
stress, emanate 'the highest possible embodiment of human will,' which is supreme and must be
obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner
ordained by law. Even if such were 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 from such a duty. not
even this Court. In that sense, the lack of regularity in the method employed to register its wishes is
not fatal in its consequences. Once the fact of acceptance by the 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
obeisance falls on the courts as well."   Even petitioners must be aware that aside from the
17

referendum that led to the ratification of the present Constitution, there was a second one held on
July 27 and 28 in 1973,   and another on February 27 and 28 in 1975.   The 1976 amendments to
18 19

the Constitution were adopted in the referendum held on October 16 and 17 of the year.   Then on 20

December 17, 1977, there was again held a referendum.   The fact that the people went to the polls
21

would be indicative of their acquiescence in the present Constitution. Nor could petitioners be
unaware that two elections have been held under the present Constitution, one for members of
the Interim Batasang Pambansa on April 7, 1978 and the other for local government officials on
January 30, 1980. In the face of the above clearly manifested recognition of the force and effect of
the present Constitution, by the people, including those in the opposition, it would seem that any
argument to the contrary should be consigned to a well-merited limbo. 

3. There is an even graver misapprehension of the significance of the President being the
Commander-in-Chief of the Armed Forces and the restricted concept of martial law as known to
American Jurisprudence well-nigh authoritative in this jurisdiction. The provision of the 1935
Constitution by virtue of which martial law was declared reads as follows: "The President shall be
commander-in-chief of all Armed Forces of the Philippines and, whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public
safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law."   The commander-in-chief clause is traceable to
22

the United States Constitution,   which however does not empower the American President to
23

declare martial law. It is quite apparent that the framers of the 1935 Constitution, including some of
the greatest legal luminaries of the Philippines, all devoted to the concept of civilian supremacy,
expanded the commander-in-chief clause on the assumption that the President, as the highest
civilian authority, should not be bereft of competence to deal with any danger to the State whether
posed by external aggression or internal subversion. He was thus empowered to suspend the
privilege of the writ of habeas corpus and to declare martial law. At any rate, there was nothing novel
in such a provision as far as the Philippines is concerned. It owed its origin to the Philippine
Autonomy Act of 1916, more popularly known as Jones Law,  which was in turn based on the
24

Organic Act of Hawaii of 1899.   State Constitutions of Massachusetts,   New Hampshire,   Rhode
25 26 27

Island,   Vermont,   Maine,   Maryland,   Tennessee,   West Virginia,   and Alaska  likewise contain
28 29 30 31 32 33 34

martial law provisions. Neither the Colorado nor the Texas Constitutions has a provision of that
character, in the former the privilege of the writ could be suspended   and in the latter a statute was
35

enacted to enable its Governor to do so.   As interpreted by the American Supreme Court in the
36

leading cases of Moyer v. Peabody,   the opinion coming from Justices Holmes, and Sterling v.
37

Constantine,   with Chief Justice Hughes as ponente, these two decisions along with that of Duncan
38

v. Kahananloku,   made clear that martial law as understood in American jurisprudence is subject to
39

judicial scrutiny and t thus far from being all encompassing. To be more specific, martial law,
according to Willoughby, "goes no further than to warn citizens that the military powers have been
called upon by the executive to assist him in the maintenance of law and order, and that, while the
emergency lasts, they must upon pain of arrest and punishment, not commit any acts which will in
any way render more difficult the restoration of order and the enforcement of
law."  Burdick,   Willis,   and Schwartz   wrote in the same vein. Parenthetically, it may be observed
40 41 42 43

that President Ferdinand E. Marcos announced in a speech in Hawaii on April 22, 1980 that the
Philippines is partial to the Willoughby approach.   There is this modification though as announced in
44

the ponencia of Justice Makasiar in Aquino, Jr. v. Commission on Elections:   "We affirm the
45

proposition that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can promulgate proclamations, orders and decrees during the period of
Martial Law essential to the security and preservation of the Republic, to the defense of the political
and social liberties of the people and to the institution of reforms to prevent the resurgence of
rebellion or insurrection or secession or threat thereof as well as to meet the impact of a worldwide
recession, inflation or economic crisis which presently threatens all nations including highly
developed countries.   That is the extent of the influence exerted by the view of Rossiter.  There is
46 47

thus adherence to the pronouncement of Justice Black in the above-cited Dunca v.

Kahanamoku,   a case of Hawaiian origin: "Legislatures and courts are not merely cherished
48

American institutions; they are indispensable to our government."   The Interim Batasang Pambansa

49

was provided for in the 1976 Amendments to the Constitution, tile opening sentence of its first
section reading: "There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa."  The judiciary, during the period of martial law from September 21, 1972 to January 17,
50

1981, performed its functions and discharged its responsibility as a separate branch of the
government. It never ceased all the while to exercise the power of judicial review. The validity of the
proclamation of martial law was challenged and unanimously upheld in Aquino, Jr. v. Commission
on Elections.   Mention had already been made of Javellana vs. Executive Secretary,   where, as
51 52

noted, the transcendental issue posed was whether or not the 1973 Constitution was in force and
effect, with the Court dismissing the Petitions by a vote of six to four and ruling by a vote of eight to
two that there was "no further judicial obstacle to the New Constitution being considered in force and
effect," and Aquino, Jr. v. Commission on Elections,  where the question raised was as to the
53

competence of the President to issue orders and decrees having the force and effect of law, with the
Court ruling that he could do so, the ratio decidendi being the aforesaid excerpt quoted from
the ponencia of Justice Makasiar.  There are two other decisions equally signifying that this Court
54

had never been hesitant to assume jurisdiction in cases assailing the validity of Presidential acts.
The first is Aquino, Jr. v. Military Commission,   where the power of the President to create a military
55

commission with jurisdiction to try civilians for certain specified offences connected with the
rebellion, was sustained, No.56 the opinion being penned by Justice Antonio.   The other is Sanidad
56

v. Commission on Elections,   where the authority of the President to propose amendments to the
57

Constitution, the interim National Assembly not having been convened, was sanctioned.   It is not to
58

be lost sight of either that in Dumiao v. Commission on Elections,   decided on January 22, 1980,
59

while martial law was still in force, this Court nullified a portion of Section 4 of Batas Pambansa Blg.
52, which would consider the filing of charges for the commission of any crime arising from acts of
disloyalty or amounting to subversion, insurrection, or rebellion, before the Civil Court or military
tribunal after preliminary investigation as prima facie evidence of such fact. Justice Melencio-Herrera
was the ponente.  60

4. There can be no justification then for the reckless assertion that upon the proclamation of martial
law and while it was in force, constitutionalism, in terms of the exercise of the power of judicial
review and respect for individual rights, no longer held sway in the Philippines. It was Justice Lionel
Keith Murphy, of the High Court of Australia, whose advocacy of a written bill of rights for his country
has won him an international reputation as a devoted and eloquent champion of human rights who
was the Second Comparative Law Lecturer of the Integrated Bar of the Philippines. In that lecture,
he appraised the role of this Court during martial law thus: "The judicial system in the Philippines had
undergone difficult times, and much stress has been placed on it by the necessity to resolve great
issues arising in a series of cases: The Anti-Subversion, The Plebiscite, The Ratification, The Martial
Law. The Referendum, The Right, to Counsel and The Military Tribunal Cases."   He said further:
61
"Throughout these cases, one can observe with admiration the concern of the judiciary to maintain
the fundamental liberties of the people even under the most difficult conditions."   He continued his
62

appraisal of the work of the Supreme Court during martial law thus: "Violations of human rights have
occurred and do occur in the Philippines. Violations of human rights have occurred and do occur in
Australia. I will mention some shortly. They occur in the United States and elsewhere. But the
Philippines and the United States have courts which are able to enforce mandatory provisions in the
Bill of Rights. Your Supreme Court does so daily, openly and in reasoned decision given by your
Justices."   To paraphrase a recognized authority in American Constitutional law and one of the
63

most respected American legal scholars, Professor Paul A. Freund it is not too much to expect of
any counsel appearing before the Supreme Court that there should be on his part a certain degree
of awareness of the pitfalls and delusions of certitude in view of the complexity of the strands in the
web of constitutionalism which the Court must disentangle.   There is still much to be said of this
64

aphorism of Justice Holmes: "Certitude is not the test of certainty." In the field of constitutional law,
the need for reexamining the continuing validity of doctrines in the light of changing circumstances
cannot be denied. Familiarity with such doctrines, to refer anew to what was stated by Justice
Laurel, is, however, a prime requisite. 

WHEREFORE, the petition is dismissed for lack of merit. 

Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera,
JJ., concur. 

Abad Santos, J., is on leave.