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G.R. No.

L-36142 March 31, 1973


JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U.
MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL,
RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief
of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as
Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the
Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the
Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press
Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL
M. GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo
Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for other respondents.
R E S O L U T I O N

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 Ordoez, et al. against the
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing (Case
G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R.
No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the
Budget Commissioner, the National Treasurer and the Auditor General (Case G.R.
No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required
to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly heard on Monday, December
18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case G.R. No. L-35979 was,
also, heard, jointly with the others, on December 19, 1972. At the conclusion of the
hearing, on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they desire to
stress." Said notes were filed on different dates, between December 21, 1972, and
January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 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. Ordoez, 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 Roo; 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 Roo; 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,
1
with
three (3) members dissenting,
2
with respect to G.R. No. L-35948, only and another member
3
dissenting,
as regards all of the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said
respondents "and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" referring to that of 1935. The petition
therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as
"a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on
or about January 24, 1973. After reciting in substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is
without authority to create the Citizens Assemblies"; that the same "are without power to approve the
proposed Constitution ..."; "that the President is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces,
Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, 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
4
on February 3, 1973, by Eddie Monteclaro, personally and as President
of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public
Information, the Auditor General, the Budget Commissioner and the National Treasurer
5
and on February
12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales,
6
against the Executive Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,
7
Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor
Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces
of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the
Senate. In their petition as amended on January 26, 1973 petitioners Gerardo Roxas, et al.
allege, inter alia, that the term of office of three of the aforementioned petitioners
8
would expire on
December 31, 1975, and that of the others
9
on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force Congress of the Philippines "must convene for its 8th Session on
Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session"; that
"on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were
unlawfully prevented from using the Senate Session Hall, the same having been closed by the authorities
in physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said
day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and no
one was allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J.
Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning
Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained and
continue to refrain from doing so"; that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent Secretary of National Defense,
Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing
petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate
premise in the Congress of the Philippines Building ... are occupied by and are under the physical control
of the elements military organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in custody of the premises of
the Legislative Building"; that respondents "have unlawfully excluded and prevented, and continue to so
exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged
approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies
on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and
issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as
instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently
illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro
Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue
to neglect the performance of their duties and functions as such officers under the law and the Rules of
the Senate" quoted in the petition; that because of events supervening the institution of the plebiscite
cases, to which reference has been made in the preceding pages, the Supreme Court dismissed said
cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become
moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional
and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons specified in
the petition as amended; that, by acting as they did, the respondents and their "agents, representatives
and subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th
session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to
comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy
in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the
merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the ... Secretary of General Service, as well as all their agents, representatives and
subordinates to vacate the premises of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of prohibition and mandamus, as
prayed for against above-mentioned respondents, and making the writ injunction permanent; and
that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them
to comply with their duties and functions as President and President Pro Tempore, respectively, of
the Senate of Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents
filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or
amended petitions, alleging that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose submitting to them the matter of
ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed
constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a
maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions
raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial
compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the
election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the
1935 Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on
the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as
motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time
as L-36236. On that date, the parties in G.R. No. L-36283
10
agreed that the same be, likewise, heard,
as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and
L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only
that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties
were granted up to February 24, 1973, noon, within which to submit their notes of oral arguments and
additional arguments, as well as the documents required of them or whose presentation was reserved by
them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by their
respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their
aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of
time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that
said notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-
36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on
March 10, 1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor
General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a
Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a
"Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own
opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court
discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the
exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-
36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the Constitution now in force by
virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to
act" in said cases "in the absence of any judicially discoverable and manageable standards" and
because "the access to relevant information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been promulgated and great
interests have already arisen under it" and that the political organ of the Government has recognized
its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence
... about the circumstances attending the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed "that
what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory
evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional
Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances,
"it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and
much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief
sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court,
during the hearing of these cases, that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that
he had an open mind in connection with the cases at bar, and that in deciding the same he would
not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I
do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided
by the Supreme Court in banc, and no treaty or law may be declared unconstitutional
without the concurrence of two thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is
required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution
dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members
of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote
of eight Justices to nullify a rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of section 10, Article VIII of
the Constitution, "executive order" and "regulation"were included among those that
required for their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them.
11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government the Executive and the Legislative
is present, which circumstance is absent in the case of rules, regulations and executive orders.
Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President,
whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of
each House of Congress.
12
A treaty is entered into by the President with the concurrence of the
Senate,
13
which is not required in the case of rules, regulations or executive orders which are exclusive
acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme
Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President, the
dictum applies with equal force to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
Administrative acts and commands of the (Governor-General) President of the
Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to
have or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in
an executive proclamation, with all the force of an executive order.
14

In fact, while executive order embody administrative acts or commands of the President, executive
proclamations are mainly informative and declaratory in character, and so does counsel for
respondents Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165.
15
As consequence, an executive proclamation has no more than "the force of an executive
order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935
Constitution, the same number of votes needed to invalidate an executive order, rule or regulation
namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the
1971 Constitutional Convention, in the determination of the question whether or not it is now in force,
it is obvious that such question depends upon whether or not the said new Constitution has been
ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which
said Constitutional Convention was called and approved the proposed Constitution. It is well settled
that the matter of ratification of an amendment to the Constitution should be settled by applying the
provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution.
16

II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and,
hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In
support thereof, he alleges that "petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which he claims "this Court now derives its authority"; that
"nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be
the New Constitution and the prospect of unsettling acts done in reliance on it caution against
interposition of the power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new charter"; that "foreign
governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding
questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution
invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially
that they have done so in accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the dispositive portion of
Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates
from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV
has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to
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,
18
We rejected the theory of the respondents therein that
the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for
the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that
the issue was a justiciable one. With identical unanimity, We overruled the respondents' contention in the
1971 habeas corpus cases,
19
questioning Our authority to determine the constitutional sufficiency of the
factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker
20
and Montenegro
v. Castaeda,
21
insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v.
Commission on Elections,
22
the political-question theory adopted in Mabanag v. Lopez Vito.
23
Hence,
respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow
the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito.
24

The reasons adduced in support thereof are, however, substantially the same as those given in
support of the political-question theory advanced in said habeas corpus and plebiscite cases, which
were carefully considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the
plebiscite cases.
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 withinthe 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 Taada v. Cuenco,
26
this Court quoted with approval from In re
McConaughy,
27
the following:
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no jurisdiction as
the certificate of the state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a fundamental one; but
it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32
Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A.
90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220.
Thus theLegislature 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 becausethey 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.
Hisdiscretionary 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 mainfunctions of courts of justice under the
Presidential form of government adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the highest Court of the land,
to support and defend the Constitution to settle it. This explains why, in Miller v. Johnson,
28
it was
held that courts have a "duty, rather than a power", to determine whether another branch of the
government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther
and stressed that, if the Constitution provides how it may be amended as it is in our 1935 Constitution
"then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the
amendment invalid."
29
In fact, this very Court speaking through Justice Laurel, an outstanding
authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of
the Convention that drafted the 1935 Constitution declared, as early as July 15, 1936, that "(i)n times
of social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicialdepartment is the only
constitutional organ which can be called upon to determine the proper allocation of powers between the
several departments" of the government.
30

The Solicitor General has invoked Luther v. Borden
31
in support of his stand that the issue under
consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken
therein by the Federal Supreme Court has any similarity with or bearing on the cases under
consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States
against Borden and others for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands of a superior officer,
because Luther and others were engaged in a conspiracy to overthrow the government by force and
the state had been placed by competent authority under Martial Law. Such authority was the charter
government of Rhode Island at the time of the Declaration of Independence, for unlike other
states which adopted a new Constitution upon secession from England Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the drafting of a new Constitution
to be submitted to the people for their adoption or rejection. The convention was not authorized by
any law of the existing government. The delegates to such convention framed a new Constitution
which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and
became the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested,
however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to assert authority by force of
arms, and many citizens assembled to support him. Thereupon, the charter government passed 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 noprovision 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 justiciablequestion. 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 mattersother than those referring to its power to review decisions of a state court concerning the
constitution and government of that state, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases, having as
the Federal Supreme Court admitted no authority whatsoever to pass upon such matters or to
review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of
Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that
the courts have no power to determine questions of a political character. It is
interesting historically, but it has not the slightest application to the case at bar. When
carefully analyzed, it appears that it merely determines that the federal courts will
accept as final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. ... .
33

Baker v. Carr,
34
cited by respondents, involved an action to annul a Tennessee statute apportioning the
seats in the General Assembly among the counties of the State, upon the theory that the legislation
violated the equal protection clause. A district court dismissed the case upon the ground, among others,
that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the
Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-
political, inasmuch as:"... (d)eciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack,
35
the same Court, speaking through then Chief Justice Warren,
reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring thereunder that he whose qualifications
were uncontested had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal
was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court
held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the
matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute duty of the judiciary to determine
whether the Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to determine the question;
and even then many of the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... .
36

In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the
method or procedure for its amendment, it is clear to my mind that the question whether or not the
revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance
with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to
judicial inquiry, but, also, that it is the Court's boundenduty 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, alladministrative questions, affecting
elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so required by
the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and
honest elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
xxx xxx xxx
39

a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the
right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the municipality wherein they propose to
vote for at least six months preceding the election," may exercise the right of suffrage in the
Philippines. Upon the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and
none of the disqualifications, prescribed by law, and that said right may be vested by competent
authorities in persons lacking some or all of the aforementioned qualifications, and possessing some
of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the
language "(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6
thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered
in the list of barrio assembly members, shall be members thereof and may participate as such in the
plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise
the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such
right. This view is borne out by the records of the Constitutional Convention that drafted the 1935
Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of
the committee on suffrage of the Convention that drafted said Constitution which report was, in turn,
"strongly influenced by the election laws then in force in the Philippines ... ."
40
" Said committee had
recommended: 1) "That the right of suffrage should exercised only by male citizens of the Philippines." 2)
"That should be limited to those who could read and write." 3) "That the duty to vote should be
made obligatory." It appears that the first recommendation was discussed extensively in the Convention,
and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the National Assembly established by the
original Constitution instead of the bicameral Congress subsequently created by amendment said
Constitution the duty to "extend the right of suffrage women, if in a plebiscite to, be held for that
purpose within two years after the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively on the question."
41

The third recommendation on "compulsory" voting was, also debated upon rather extensively, after
which it was rejected by the Convention.
42
This accounts, in my opinion, for the permissive language
used in the first sentence of said Art. V. Despite some debates on the age qualification amendment
having been proposed to reduce the same to 18 or 20, which were rejected, and the residence
qualification, as well as the disqualifications to the exercise of the right of suffrage the second
recommendation limiting the right of suffrage to those who could "read and write" was in the language
of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention
without any dissenting vote," although there was some debate on whether the Fundamental Law should
specify the language or dialect that the voter could read and write, which was decided in the negative.
43

What is relevant to the issue before Us is the fact that the constitutional provision under
consideration was meant to be and is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned, which in turn, constitute
a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and having the disqualifications
mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of
section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in
the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly
amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of
1916 Act 2657 as chapter 20 thereof, and then in the Administrative Code of 1917 Act 2711
as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927.
Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below.
44
In all of these legislative acts, the provisions
concerning the qualifications of voters partook of the nature of a grant or recognition of the right of
suffrage, and, hence, of adenial thereof to those who lacked the requisite qualification and possessed any
of the statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond
doubt than the same conferred not guaranteed the authority to persons having the qualifications
prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary
implication, denied such right to those lacking any said qualifications, or having any of the aforementioned
disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the
submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which,
however, did not materialize on account of the decision of this Court in Tolentino v. Commission on
Elections,
45
granting the writs, of prohibition and injunction therein applied for, upon the ground that,
under the Constitution, all of the amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct elections, and that the proposed
amendment sought to be submitted to a plebiscite was not even a complete amendment, but a "partial
amendment" of said section 1, which could be amended further, after its ratification, had the same taken
place, so that the aforementioned partial amendment was, for legal purposes, no more than
a provisional or temporary amendment. Said partial amendment was predicated upon the generally
accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21)
years of age could not exercise the right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in
barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict
between the last paragraph of said section 6 of Rep. Act No. 3590,
46
pursuant to which the "majority
vote of all the barrio assemblymembers" (which include all barrio residents 18 years of age or over, duly
registered in the list of barrio assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according
to the paragraph preceding the penultimate one of said section,
47
"(a)ll duly registered barrio assembly
members qualified to vote" who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the
six months immediately preceding election, duly registered in the list of voters" and " otherwise
disqualified ..." just like the provisions of present and past election codes of the Philippines and Art. V
of the 1935 Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of
the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also,
because provisions of a Constitution particularly of a written and rigid one, like ours generally
accorded a mandatory status unless the intention to the contrary is manifest, which is not so as
regards said Art. V for otherwise they would not have been considered sufficiently important to be
included in the Fundamental Law of the land.
48
Besides, it would be illogical, if not absurd, believe that
Republic Act No. 3590 requires, for the most important measures for which it demands in addition to
favorable action of the barrio council the approval of barrio assembly through a plebiscite, lesser
qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not
be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V
thereof to apply only to elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that
the object thereof much more important if not fundamental, such as the basic changes introduced
in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many decades, and to affect the way of life of
the nation and, accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers,
49
whose average term ranges from 2 to
6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not
they possessed the other qualifications laid down in both the Constitution and the present Election
Code,
50
and of whether or not they are disqualified under the provisions of said Constitution and
Code,
51
or those of Republic Act No. 3590,
52
have participated and voted in the Citizens' Assemblies that
have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of age or
over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation
No. 1102 states that 14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against ... 743,869 who voted for its rejection," whereas,
on the question whether or not the people still wanted a plebiscite to be called to ratify the new
Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that the vote of
the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words,
it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for
exceeded the number of registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to say
on this point in subsequent pages were fundamentally irregular, in that persons lacking the
qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of
age can be separated or segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void.
53

It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it
is impossibleto ascertain with reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ."
54

In Usman v. Commission on Elections, et al.,
55
We held:
Several circumstances, defying exact description and dependent mainly on the
factual milieu of the particular controversy, have the effect of destroying the integrity
and authenticity of disputed election returns and of avoiding their prima facie value
and character. If satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested parties, stamp the election
returns with the indelible mark of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to
the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled
meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65
N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast."
56

The word "cast" is defined as "to deposit formally or officially."
57

It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The
word "cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the
choice of the voter on the measure proposed.
58

In short, said Art. XV envisages with the term "votes cast" choices made on ballots not
orally or by raising by the persons taking part in plebiscites. This is but natural and logical, for,
since the early years of the American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and furnished by the Government and
secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935
to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be stressed here is the term
"independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it
have been depends upon either Congress or the Judiciary? The answer must be the negative,
because the functions of the Commission "enforcement and administration" of election laws
are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress
or courts of justice. Said functions are by their nature essentially executive, for which reason, the
Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an
"independent" body. In other words, in amending the original 1935 Constitution, by inserting therein
said Art. X, on the Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines were enforced by the then Department of the
Interior, through its Executive Bureau, one of the offices under the supervision and control of said
Department. The same like other departments of the Executive Branch of the Government
was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution,
and had been until the abolition of said Department, sometime ago under the control of the
President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the
same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was
amended by the establishment of the Commission on Elections as a constitutional body independent
primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its
members nine (9) years, except those first appointed
59
the longest under the Constitution,
second only to that of the Auditor General
60
; by providing that they may not be removed from office
except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed;
that their salaries, "shall be neither increased nor diminished during their term of office"; that the decisions
the Commission "shall be subject to review by the Supreme Court" only
61
; that "(n)o pardon, parole, or
suspension sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission"
62
; and, that its chairman and members "shall not, during the
continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may affected by the functions of their
office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or
any subdivision or instrumentality thereof."
63
Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect and insure the independence of each
member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all laws
relative to the conduct of elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those involving the right to
vote, all administrative question affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on one hand, and the other
offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law
enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections."
Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below.
64
Moreover, said Act contains, inter alia, detailed provisions
regulating contributions and other (corrupt) practices; the establishment of election precincts; the
designation and arrangement of polling places, including voting booths, to protect the secrecy of the
ballot; formation of lists of voters, the identification and registration of voters, the proceedings therefor, as
well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the
establishment of municipal, provincial and files of registered voters; the composition and appointment of
board of election inspectors; the particulars of the official ballots to be used and the precautions to be
taken to insure authenticity thereof; the procedure for the casting of votes; the counting of votes by
boards of inspectors; the rules for the appreciation of ballots and the preparation and disposition of
election returns; the constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates in each election precinct; the
proclamation of the results, including, in the case of election of public officers, election contests; and the
jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the
penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free,
orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-called Barangays or
Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In
many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the
right to vote secretly one of the most, fundamental and critical features of our election laws from
time immemorial particularly at a time when the same was of utmostimportance, owing to
the existence of Martial Law.
In Glen v. Gnau,
65
involving the casting of many votes, openly, without complying with the requirements
of the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly
condemned" therefor and that if they "could legally dispense with such requirement ... they could with
equal propriety dispense with all of them, including the one that the vote shall be by secret ballot, or even
by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the
1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity
of which which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases
66
We need not, in the case of bar, express any opinion) was issued, calling a plebiscite,
to be held on January 15, 1973, at which the proposed Constitution would be submitted to the people for
ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia,
that "(t)he provision of the Election Code of 1971, insofar as they are not inconsistent" with said decree
excepting those "regarding right and obligations of political parties and candidates" "shall apply to the
conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that "(a)ll elections of
public officers except barrio officials and plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the plebiscite
scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in plebiscite
to take place at such notice, and no other order or decree has been brought to Our attention, expressly or
impliedly repealing the provisions of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or
instructions suspended by General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions and, hence, the provisions of Presidential Decree No. 73 outlining
the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution
remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below
67

the Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision"; that such Citizens' Assemblies "shall consider vital
national issues ... like the holding of the plebiscite on the new Constitution ... and others in the future,
which shall serve as guide or basis for action or decision by the national government"; and that the
Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important
national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development immediately thereafter, ... ." As in
Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on Elections or its participation in the proceedings in
said Assemblies, if the same had been intended to constitute the "election" or Plebiscite required Art. V of
the 1935 Constitution. The provision of Decree No. 86-A directing the immediate submission of the result
thereof to the Department of Local Governments Community Development is not necessarily inconsistent
with, and must be subordinate to the constitutional power of the Commission on Elections to exercise its
"exclusive authority over the enforcement and administration of all laws to the conduct of elections," if the
proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification
or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B,
dated 1973, ordering "that important national issues shall from time to time; be referred to the
Barangays (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,
69
is
not conclusive upon the courts. It is no more than prima facieevidence of what is attested to by said
resolution.
70
If assailed directly in appropriate proceedings, such as an election protest, if and when
authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance
therewith, who was duly elected to the office involved.
71
If prior to the creation of the Presidential
Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring
who had been elected President or Vice-President was conclusive upon courts of justice, but because
there was no law permitting the filing of such protest and declaring what court or body would hear and
decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or
revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly
assailedin court and be the object of judicial inquiry, in direct proceedings therefor such as the cases at
bar and the issue raised therein may and should be decided in accordance with the evidence
presented.
The case of In re McConaughy
72
is squarely in point. "As the Constitution stood from the organization of
the state" of Minnessota "all taxes were required to be raised under the system known as the
'general property tax.' Dissatisfaction with the results of this method and the development of more
scientific and satisfactory methods of raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of
subjects. This proposed amendment was submitted at the general election held in November, 1906, and
in due time it was certified by the state canvassing board and proclaimed by the Governor as having been
legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution,
the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and
the latter statute, upon the same theory, was held constitutional" by said Court. "The 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,
73
the Court reviewed the statement of results of the election made by the canvassing
board, in order that the true results could be judicially determined. And so did the court in Rice v.
Palmer.
74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission
on Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the Commission in
support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102
apart from the fact that on January 17, 1973 neither the alleged president of the Federation of
Provincial or City Barangays nor the Department of Local Governments had certified to the President
the alleged result of the citizens' assemblies all over the Philippines it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of
the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of
the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even
been, ratified in accordance with said proposed Constitution, the minimum age requirement therein
for the exercise of the right of suffrage beingeighteen (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 havenot so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample
reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.
In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the Commission on
Elections the Court deemed it more imperative to defer its final action on these
cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972
four (4) days after the last hearing of said cases
76
the President announced the postponement of
the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation
with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the
time available to translate the proposed Constitution into some local dialects and to comply with some
pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the
contents and implications of said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from
January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the
Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be
the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the
"plebiscite" postponed by General Order No. 20? Under these circumstances, it was only reasonable for
the people who attended such assemblies to believe that the same were not an "election" or plebiscite for
the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies,
namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be
called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the
language of question No. 7 "Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act, which the first person,
however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the
proposed Constitution would have become effective and no other plebiscite could be held thereafter
in connection therewith, even if the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions apart from the other
questions adverted to above indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens' assemblies in many parts of
Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B.
Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to
change the questions, we urgently suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of guidelines and
materials to be used.
On January 11, ... another instruction from the top was received to include the
original five questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us with enough hands
to trouble shoot and implement sudden changes in the instructions anytime and
anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept this new method of government to
people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens'
Assembly meetings ..." and call all available officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top
was received to include the original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to people consultation in
shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had
still to discuss not put into operation means and ways to carry out the changing instructions
from the top on how to organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no
more than consultations or dialogues between people and government not decisions be made by
the people; and 3) that said consultations were aimed only at "shaping up government policies" and,
hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11,
1973, one can easily imagine the predicament of the local officials and people in the remote barrios
in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families and their household,
although duly registered voters in the area of Greater Manila, were not even notified that citizens'
assemblies would be held in the places where their respective residences were located. In the
Prohibition and Amendment case,
77
attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the
United States stressed, in Baker v. Carr,
78
that "a court is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or
resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since January
17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised Constitution; that our foreign relations
are being conducted under such new or revised Constitution; that the Legislative Department has
recognized the same; and that the people, in general, have, by their acts or omissions, indicated
their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to
the offices under the Executive Department. In a sense, the latter performs some functions which,
from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our Government, and even in
devising administrative means and ways to better carry into effect. Acts of Congress which define
the goals or objectives thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly,
to the Executive. This, notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department specially under a written, rigid Constitution with a
republican system of Government like ours the role of that Department is inherently, basically and
fundamentally executive in nature to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution.
79

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something
that cannot legally, much less necessarily or even normally, be deduced from their acts in
accordance therewith, because the are bound to obey and act in conformity with the orders of the
President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under
Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President
thereafter, he had assumed all powers of Government although some question his authority to do
so and, consequently, there is hardly anything he has done since the issuance of Proclamation
No. 1102, on January 17, 1973 declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the overwhelming majority of the people that he
could not do under the authority he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its personnel, which said proposed
Constitution would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the aforementioned Constitution is
disputed.
Then, again, a given department of the Government cannot generally be said to have
"recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts
of another. Accordingly, when a subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no
act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth
80
cited by respondents herein in support of
the theory of the people's acquiescence involved a constitution ordained in 1902 and "proclaimed by a
convention duly called by a direct vote of the people of the state to revise and amend the Constitution of
1869. The result of the work of that Convention has been recognized, accepted and acted upon as
the only valid Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been engaged for nearly a
year, in legislating under it and putting its provisions into
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,
82
likewise,
headlined, on its front page, a "Senatorial PlotAgainst '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."
83
The failure to use the gun against
those who comply with the orders of the party wielding the weapon does not detract from the intimidation
that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the
person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster,
but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is
there, and inaction or obedience of the people, under these conditions, is not necessarily an act of
conformity or acquiescence. This is specially so when we consider that the masses are, by and
large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed
Constitution, with the particularity that it is not even identical to that existing in England and other parts of
the world, and that even experienced lawyers and social scientists find it difficult to grasp the full
implications of some provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the
same refers to a document certified to the President for his action under the Constitution by the
Senate President and the Speaker of the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative
measures approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive
upon the President and the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President
of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association,
which even prepared the draft of said legislation, as well as lobbied actually for its approval, for
which reason the officers of the Association, particularly, its aforementioned president whose
honesty and integrity are unquestionable were present at the deliberations in Congress when the
same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the
answer would have to be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and, hence, his certification is
legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and
Community Development about the tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines and the records do not show that any such certification, to
the President of the Philippines or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association presidents of barrio or ward
assemblies of citizens would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the
department which, according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval,
84
the Highest Court of the United States
that courts "willnot 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."
86
When the petitions at bar were filed, the same
three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the
members of the Court did not share, however, either view, believing that the main question that arose
before the rendition of said judgment had not been sufficiently discussed and argued as the nature and
importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to
elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five
(5) consecutive days morning and afternoon, or a total of exactly 26 hours and 31 minutes the
respective counsel filed extensive notes on their or arguments, as well as on such additional
arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders
thereto, aside from a sizeable number of document in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents
and purposes, the situation is as if disregarding forms the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views
on the aforementioned issues as if the same were being decided on the merits, and they have done
so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of
the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat
and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in
our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L-
36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due
course, there being more thanprima 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,
90
are relevant and
unavoidable."
91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted
to deny respondents' motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered
in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has beenjudicially 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 peoplein
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 candispense 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, theuniversal
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. Allthese 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.
InLivermore 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 materialvariance 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 17amendments
adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted
upon the second in the form adopted by the first body. The substance of the contention was that
there had not been a concurrence of the two Legislatures on the same amendments, according to
the letter and spirit of the Constitution. The court held that the power of the Legislature in submitting
amendments could not be distinguished from the powers of convention, and that, as the people had
spoken and ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed
amendment to Constitution could not be submitted to the people at any other than a general
election; but, as the amendment under consideration had been submitted after the Constitution been
changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the
Constitution had been legally submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under consideration changed the Constitution by
providing for an elective, instead of an appointive, judiciary. It was contented that the amendments
had been improperly submitted and adopted by a majority of the qualified voters voting at election,
as required by the Constitution. The law did direct how the result of the election should be
determined. The Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said
amendment be, and hereby is, insertedinto the Constitution of the state of Mississippi as a part of
the Constitution.' In fact, the amendment was notsubmitted 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 ofcertiorari 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 anyprevailing 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
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them
for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as a
plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership
in political, economic and social fields, and that it is now necessary to bring this down to the level of
the people themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby order that important national issues shall from
time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall include the
matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall insure
the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and
seventy-three.
(SGD.) FERDINAND
E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary



Separate Opinions

MAKALINTAL, J ., concurring:
CASTRO, J ., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a
sufficient prima faciecase in their petitions to justify their being given due course. Considering on the
one hand the urgency of the matter and on the other hand its transcendental importance, which
suggested the need for hearing the side of the respondents before that preliminary question was
resolved, We required them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally argued. As it turned out,
the hearing lasted five days, morning and afternoon, and could not have been more exhaustive if the
petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed
by the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let
alone a valid one, of the proposed Constitution, because it was not in accordance with the existing
Constitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely subordinate and
peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by
Congress in joint session or by a Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election at which the amendments
submitted to the people for their ratification." At the time Constitution was approved by the
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14,
the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague
and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters submitted to the pursuant to
law, for approval. It was in this sense that word was used by the framers in Article XV (also in
Articles VI and VII), and in accordance with such procedure that plebiscites were held to ratify the
very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the Commission of Elections);
1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and
eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their
offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio
officials andplebiscites shall be conducted in the manner provided by this Code." This is a statutory
requirement designed, as were the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the
term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the
qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of
age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election
Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of
registration and the custody thereof, the description and printing of official ballots, the actual casting
of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of
ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional
circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered
part of the Constitution when approved by a majority of the votes cast in an
election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen hundred and thirty-five and all
amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future
amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional Convention on November 30,
1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that
a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such
appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to
said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held
on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for
ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such as: (a) publication of the
proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and designation of watchers in
each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy
thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory
powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view from the framers of the 1935 Constitution
through all the Congresses since then to the 1971 Constitutional Convention amendments to the
Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters. Indeed, so concerned was
this Court with the importance and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-
34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention
submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen
years and was approved by the Convention for submission to a plebiscite ahead of and separately
from other amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later. This
Court held that such separate submission was violative of Article XV, Section 1, of the Constitution,
which contemplated that "all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a
proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as
in Tolentino vs. COMELEC, but the ratification of an entire charter setting up a new form of
government; and the issue has arisen not because of a disputed construction of one word or one
provision in the 1935 Constitution but because no election or plebiscite in accordance with that
Constitution and with the Election Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by
Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in
the democratic process and to afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened
for a referendum between January 10 and 15, to "consider vital national issues now confronting the
country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the
Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the
new Constitution to be held?" It should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite which he had called for January 15,
1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
two new dates for the purpose February 19 or March 5; that he had ordered that the registration
of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of
the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24,
1972.)
On January 10, 1973 it was reported that one more question would be added to the original four
which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was
reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be
noted, was that the Assemblies should express their views as to the plebiscite should be held, not as
to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the
provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it
is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want
him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion
was broached, for the first time, that the plebiscite should be done away with and a favorable vote by
the Assemblies deemed equivalent ratification. This was done, not in the questionnaire itself, but in
the suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an
unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted
in the Citizen Assemblies, assuming that such voting was held, was not within the intendment of
Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said
Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by
Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision
of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered
voters, but included all citizens from the age of fifteen, and regardless of whether or not they were
illiterates, feeble-minded, or ex convicts * these being the classes of persons expressly disqualified from voting by Section
102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of
the essential features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and
reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of
all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid
exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
but that the same must be duly ascertained in accordance with the procedure prescribed by law. In
other words the very existence of such majority or plurality depends upon the manner of its
ascertainment, and to conclude that it exists even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as
it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that
was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as
certified by the President in Proclamation No. 1102, was not in accordance with the constitutional
and statutory procedure laid down for the purpose does not quite resolve the questions raised in
these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably declare that the Constitution has not
become effective, and for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases, to resolve which considerations other than judicial, and therefore
beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on the
invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would
have this Court grant the reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government, challenge the jurisdiction of
this Court on the ground that the questions raised in the petitions are political and therefore non-
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition of the power of judicial
review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their counsel,
Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not
concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by the people
was made under a revolutionary government, in the course of a successful political revolution, which
was converted by act of the people to the present de juregovernment under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on
the assumption, conceded by all, that the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court was simply to determine
whether or not the particular act or statute that was being challenged contravened some rule or
mandate of that Constitution. The process employed was one of interpretation and synthesis. In the
cases at bar there is no such assumption: the Constitution (1935) has been derogated and its
continued existence as well as the validity of the act of derogation is issue. The legal problem posed
by the situation is aggravated by the fact that the political arms of the Government the Executive
Departments and the two Houses of Congress have accepted the new Constitution as effective:
the former by organizing themselves and discharging their functions under it, and the latter by not
convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and
in the case of a majority of the members by expressing their option to serve in the Interim National
Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be
taken up and restated at same length if only because it would constitute, if sustained, the most
convenient ground for the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972
(Proclamation No. 1081) he established a revolutionary government when he issued General Order
No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of
the entire government, including all its agencies and instrumentalities, in my capacity, and shall
exercise all the powers and prerogatives appurtenant and incident to my position as such
Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the
Commander-in-Chief of the Armed Forces assumed all the powers of government executive,
legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and
Decrees which amounted to legislative enactments not justified under martial law and, in some
instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain
classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation
No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly
designated representative pursuant thereto." (General Order No. 3 as amended by General Order
No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was
the culminating act of the revolution, which thereupon converted the government into a de jure one
under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what
the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing government and set up a
new government in its place, there could not be the least doubt that their act would be political and
not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; judicial dictum can prevail against it. We do
not see that situation would be any different, as far as the doctrine of judicial review is concerned, if
no force had been resorted to and the people, in defiance of the existing Constitution but peacefully
because of the absence of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can be no adequate judicial
relief; and so courts forbear to take cognizance of the question but leave it to be decided through
political means.
The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a
case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator
Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry
belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State
court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had
been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision
upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under
which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able
to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases
at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution. However, we are not prepared to
agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant
circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential
Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford
ample opportunities for the citizenry to express their views on important national issues." (2) The
President announced, according to the Daily Express of January 2, 1973, that "the referendum will
be in the nature of a loose consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos,
in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum
results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by the Filipino people."
(5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were submitted to them. In fact the
plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
indefinite date, the reasons for the postponement being, as attributed to the President in the
newspapers, that "there was little time to campaign for or against ratification" (Daily Express, Dec.
22, 1972); that he would base his decision (as to the date, of the plebiscite) on the compliance by
the Commission (on Elections) on the publication requirement of the new Charter and on the position
taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could
not have understood the referendum to be for the ratification of the Constitution, but only for the
expression of their views on a consultative basis. Indeed, if the expression of those views had been
intended as an act of ratification (or of rejection as a logical corollary) there would have been no
need for the Katipunan ng mga Barangay to recommend that the Constitution should already be
deemed ratified, for recommendation imports recognition of some higher authority in whom the final
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had
been ratified and had come into effect. The more relevant consideration, therefore, as far as we can
see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views was
an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether
or not the regime established by President Marcos since he declared martial law and under which
the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of theKatipunan ng mga Barangay, was intended
to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. We must confess that after considering
all the available evidence and all the relevant circumstances we have found no reasonably reliable
answer to the question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future,
our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no
man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7,
1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said
the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on
justiciable matters, on matters that may come before the experts and interpreters of
the law. But we cannot disqualify the people from speaking on what we and the
people consider purely political matters especially those that affect the fundamental
law of the land.
... The political questions that were presented to the people are exactly those that
refer to the form of government which the people want ... The implications of
disregarding the people's will are too awesome to be even considered. For if any
power in government should even dare to disregard the people's will there would be
valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer
tolerate any attempt to undermine the stability of their Republic; they will rise up in
arms not in revolt against the Republic but in protection of the Republic which they
have installed. It is quite clear when the people say, we ratify the Constitution, that
they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before,
from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary
concessions to traditional democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and overcome the extraordinary
challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to "the demand of some of our citizens ... that when all other measures should fail, that the
President be directed to organize and establish a Revolutionary Government," but in the next breath
added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They
cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted
this recommendation merely sought articulate their impatience with the status quo that has brought
about anarchy, confusion and misery to the masses ..." The only alternatives which the President
clearly implied by the foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out,
namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather than return to
such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a
revolutionary government, because that would be the only other way to carry out the reforms he had
envisioned and initiated reforms which, in all fairness and honesty, must be given credit for the
improved quality of life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution was
meant to be irreversible, and that nothing anyone could say would make the least difference. And if
this is a correct and accurate assessment of the situation, then we would say that since it has been
brought about by political action and is now maintained by the government that is in undisputed
authority and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has
professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and
social change ... but that in a democratic society, revolution is of necessity,
constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President
by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions. The Government
of the Republic of the Philippines which was established by our people in 1946
continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the Constitution to save
the Republic and reform our society...
I have had to use this constitutional power in order that we may not completely lose
the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger
powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the
issue of January 29, 1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't you be
in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am
doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through
is sufficient cause to proclaim martial law but at the very least there is
a danger of rebellion because so many of our soldiers have been
killed. You must remember this (martial law provision) was lifted from
the American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is
in no position to pass judgment. Among them is the President's own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with
the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to
be. The President should now perhaps decide, if he has not already decided, whether adherence to
such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now
and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the
people, such issue being related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under
a regime of martial law, with the free expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these
cases is concerned. To interpret the Constitution that is judicial. That the Constitution should be
deemed in effect because of popular acquiescence that is political, and therefore beyond the
domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J ., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the
Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in the so called
Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of
some of the grounds previously alleged and in the course of the unprecedented five-day hearing that
was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us,
but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of
counsels, nothing more cogent and compelling than what had already been previously presented by
Counsel Taada is before Us now. Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
petitions were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that I reserved
before the filing of a more extended opinion, I will take this opportunity to explain further why I hold
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January
10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more
importantly as a political act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of
the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be
deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the
1935 Constitution. If indeed this explanation may be considered as a modification of my
rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon,
paramount considerations of national import have led me to the conviction that the best interests of
all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
in force, not necessarily as a consequence of the revolutionary concept previously suggested by me,
but upon the ground that as a political, more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the substantiality of Article XV of the 1935
Constitution.
I
The facts that gave rise to these proceedings are historical and well known. Generally, they may be
taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973
declared in Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March
16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of
1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10,
1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1,
1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and
committees and an incomprehensible fear of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had
finished deliberations and second-reading voting only on an insignificant number of proposals
until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the
Convention recessed until after the lifting of martial law, and not long after the motion of Delegate
Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if
unmindful of the arrest and continued detention of several of its members, the convention gathered
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft
of a complete constitution, instead of mere specific amendments of particular portions of the
Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited
coverage of the workings in the convention by the mass media. At the same time, public debates
and discussions on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President
Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new
Constitution on appropriate date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73
submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973.
This order contained provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and
enjoining the authorities to allow and encourage public and free discussions on proposed
constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered
the suspension the effects of martial law and lifted the suspension of privilege of the writ of habeas
corpus insofar as activities connected with the ratification of the draft constitution were concerned.
These two orders were not, however, to last very long. On January 7, 1973, the President, invoking
information related to him that the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat the purposes for which they
were issued and to foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86
creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their
views on important national issues" and one of the questions presented to said assemblies was: "Do
you like the plebiscite on the proposed Constitution to be held later" So, the same order of January
7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held
January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered
from barangays (citizens assemblies) that have so far been established, the people
would like to decide for themselves questions or issues, both local and national,
affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the
vehicle for expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal
status and due recognition as constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a
referendum on certain specified questions such as the ratification of the new
Constitution, continuance of martial law, the convening of Congress on January 22,
1973, and the elections in November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution as Commander-in-Chief of all
Armed Forces of the Philippines, do hereby declare as part of the law of the land the
following:
1. The present barangays (citizens assemblies) are created under Presidential
Decree No. 86 dated December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their collective views shall be considered in
the formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973, and others in the future, which shall serve as
guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the Department of Local
Governments Community Development immediately thereafter, pursuant to express
will of the people as reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen
hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office
of the President to submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of
the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe
that the submission of the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political, economic and social
fields, and that it is now necessary to bring this down to the level of the people
themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated
January 5, 1973 and that the initial referendum shall include the matter of ratification
of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the
referendum which was held from said date to January 15, 1973, the following questions were
submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the
said questions more or less suggestive of the answer desired. It may assumed that the said
"comments" came from official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is
to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the
new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise, that the results of the
referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of
Local Governments. The transmission of the results was made by telegram,
telephone, the provincial government SSB System in each province connecting all
towns; the SSB communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results were
then flown to Manila to confirm the previous figures received by the aforementioned
means of transmission. The certificates of results tallied with the previous figures
taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the
Citizens Assemblies operation at the Department wherein the identity of the barrio
and the province was immediately given to a staff in charge of each region. Every
afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures were tabulated
at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were
then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17,
1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you
still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95)
percent of the members of the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelmingly majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of
December 1972.
1
Their common target then was Presidential Decree No. 73, but before the said cases
could be decided, the series of moves tending in effect to make them moot and academic insofar as they
referred exclusively to the said Presidential Decree began to take shape upon the issuance of
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above
quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were
known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being
adopted to secure approval by the people of the new Constitution, hence Counsel Taada, not being
satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12,
1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of
the proceedings going on. Principal objective was to prevent that the President be furnished the report of
the results of the referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done the issuance of some kind of proclamation, order or decree,
declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same
day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and
to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened
that morning form part of the recital of facts the decision rendered by this Court in the ten cases on
January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Taada was still insisting on his prayer for preliminary injunction or restraining
order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and
persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the
mind of the majority of the members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the answer thereto filed by respondents,
the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices
Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Taada's pleading and argument
had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according
them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential
by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel
Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President
and President Pro Tempore of the Senate, to the effect that change in the composition of the
Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the
date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond
our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement
2
or law, the
Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as
the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as
the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in
effect, it would be choosing between two constitutions, which is a political determination not within the
Court's competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly
that the issue should not be ignored or dodged, if only to make the world know that the Supreme
Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it
would be to admit that this Supreme Court does not know, to use a common apt expression, whether
it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will
inevitably examine minutely how each of us voted and upon what considerations we have
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation
1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
six of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to
efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood
that by the vote of justices in favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am
averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should
knowingly countenance is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute
we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other
considerations inherent to our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a case without knowing the
basis of its author to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting in
these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant constitutional mandate, the
same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new Constitution is in force and that We
are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two constitutions. The truth of
matter is simply that in the normal and logical conduct governmental activities, it is neither practical
nor wise to defer the course of any action until after the courts have ascertained their legality, not
only because if that were to be the rule, the functioning of government would correspondingly be
undesirably hesitative and cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as otherwise, the smooth running
of the government would have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary
to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world
that has recognized judicial supremacy as its basic governmental principle, no matter how desirable
we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that
this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees
of the most legislative character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry are pouring out from
Malacaang under the authority of said Constitution. On the other hand, taxes are being exacted
and penalties in connection therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in big numbers are going on in
obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in
the midst of these developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated consequences such a position entails
in the internal workings within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of the land in making their
orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is
not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the
Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for
the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that,
official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has
been transferred from the Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that direction. That, on the other hand, the
President has not augmented the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the presence of ten justices who are the
Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added
would only be committed to upholding the same, since they cannot by any standard be expected to
vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We
are dealing here with a whole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is
the same 1935 Constitution, with a few improvements. A cursory perusal of the former should
convince anyone that it is in essence a new one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the
statement of general principles, the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the national economy as well as
the patrimony of the nation, not to mention the distinctive features of the general provisions. What is
more, the transitory provisions notably depart from traditional and orthodox views in that, in general,
the powers of government during the interim period are more or less concentrated in the President,
to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and
acts previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by President
Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new constitution unlike any other
constitution countenances the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede
the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory
provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure
of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein
correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-
man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid,
then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court
and it happens that Our collective decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself as included automatically in the 15-man-
Court, since that would tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an election"
in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that
the word "election" in the said Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum was a farce and its
results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to
have submitted the final report to the President, which served as basis for Proclamation 1102, had
no official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the
short period of time employed. Of course, they also contend that in any event, there was no proper
submission because martial law per se creates constructive duress which deprives the voters of the
complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the
matter raised in the petitions is a political one which the courts are not supposed to inquire into, and,
anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the
Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity
in the voting as well as in the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held
that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself
clearer on some relevant points, I would like to add a few considerations to what I have already said
in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the
Presidential certification through Proclamation 1102 itself that the New Constitution has been
approved by a majority of the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the referendum was as the President
had stated. I can believe that the figures referred to in the proclamation may not accurate, but I
cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw
with own eyes that people did actually gather and listen discussions, if brief and inadequate for those
who are abreast of current events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were
actually no meetings held and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the declaration that there was voting
and that the majority of the votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens
Assemblies was to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are
to be believed, and I say this only because petitioners would consider the newspapers as the official
gazettes of the administration, the last set of six questions were included precisely because the
reaction to the idea of mere consultation was that the people wanted greater direct participation, thru
the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically the two questions emphasized by counsel,
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to
ratify the new Constitution? should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if
the majority had expressed disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have been thought that if the
holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the
non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause,
of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly
suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of
the point that as so framed, the thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded categorically thus Do you
approve the New Constitution? The contention would have been weighty were it not unrealistic. I
remember distinctly that the observation regarding the construction of the subject question was not
originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of envy of even professors
of English. None of the other members of the Court, as far as I can recall, ever noticed how the said
question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a factual answer
instead of a mere opinion, how could anyone expect the millions of unlettered members of the
Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself
did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in
the light of the accompanying "comment" corresponding to it in particular, I am certain that any one
who answered the same understood it in no other sense than a direct inquiry as to whether or not,
as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that according to the
reported result of the referendum said answer was even coupled with the request that the President
defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the
convening of the interim assembly, the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not
want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different and more meaningful
aspect, namely, the formation of a new society. From the point of view of the President and on the
basis of intelligence reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as
in the case of rebellious movement that threatened the Quirino Administration, the remedy was far
from using bullets alone. If a constitution was to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than
hastened the progress of the people. Stated otherwise, in the context of actualities, the evident
objective in having a new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these considerations in mind
can the "comments" already referred to be properly appreciated. To others said "comments" may
appear as evidence of corruption of the will of those who attended the assemblies, but actually, they
may also be viewed in the same light as the sample ballots commonly resorted to in the elections of
officials, which no one can contend are per semeans of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical,
considering the need for faster decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific proposed amendments, the former
calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment. Accordingly, there was
need to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the existence
of said "comments" should make any appreciable difference in the court's appraisal of the result of
the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from
the value that the referendum would otherwise have had. As I intimated, however, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
law per se. For one thing, many of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed wishes of the President that
the same be made "Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information
which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is
simply that a man may freely and correctly vote even if the needed information he possesses as to
the candidates or issues being voted upon is more or less incomplete, but when he is subject to
arrest and detention without investigation and without being informed of the cause thereof, that is
something else which may actually cause him to cast a captive vote. Thus it is the suspension of the
writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom
choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has
never produced any chilling effect upon the voters, since it is known by all that only those who run
afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and
1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the
referendum may considered as sufficient basis for declaring that the New Constitution has been
ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum which could have in one way or another affected the exercise of the freedom of choice
and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the
same conditions may be relevant in my subsequent discussions of the acceptance by the people of
the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether
or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold
that the propriety of submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this
effect. In view, however, of the factual background of the cases at bar which include ratification itself,
it is necessary for me to point out that when it comes to ratification, I am persuaded that there should
be a boundary beyond which the competence of the courts no longer has any reason for being,
because the other side is exclusively political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess
votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the
outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by referring to the results announced in
the proclamation itself. Giving substantial allowances for possible error and downright manipulation,
it must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure
adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative
but to rely on what has been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing of the acceptance in
question by this time, there would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord
to the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41
SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the
Constitution of 1935, to be valid, must appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that decision asserted judicial competence to
inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the
correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said
constitutional provision. Without trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the cases now at bar, which are
entirely different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular
provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted this point when I made
reference in the resolution denying the motion for reconsideration to the fact that Article XV must be
followed "as long as any amendment is formulated and submitted under the aegis of the present
Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such an eventuality, the new Constitution
would subject its going into effect to any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
of the referendum and provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take
into consideration the forces and the circumstances dictating the replacement. From the very nature
of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression
of a people's resolute determination to bring about a massive change of the existing order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any question arise as to its effectivity and there is
some reasonable indication that the new charter has already received in one way or another the
sanction of the people, I would hold that the better rule is for the courts to defer to the people's
judgment, so long as they are convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances,
the courts should not bother about inquiring into compliance with technical requisites, and as a
matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed to do under the
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being
composed of experienced, knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire
the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As
counsel Tolentino has informed the court, there was noting to stop the senators and the
congressmen to meet in any other convenient place and somehow officially organize themselves in
a way that can logically be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to
form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present prayers for mandamus have
no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the
new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the
government under the 1935 Constitution, two, the Executive and the Legislative, have already
accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how
this Supreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial power prevail against the decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture
that concerns me. More than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the
Constitution. If as the representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if
there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty
vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time, towards their accomplishment,
cannot but feel apprehensive that instead of serving the best interests of our people, which to me is
in reality the real meaning of our oath of office, the Court might be standing in the way of the very
thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal
erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all
relevant circumstances, principally the political, or, in brief, a decision more political than legal, which
a court can render only by deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot
agree with the Solicitor General that in the legal sense, there has been at least substantial
compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense,
the answers to the referendum questions were not given by the people as legal conclusions. I take it
that when they answered that by their signified approval of the New Constitution, they do not
consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that what was being done was in conformity with prevailing
constitutional standards. We are not to assume that the sovereign people were indulging in a futile
exercise of their supreme political right to choose the fundamental charter by which their lives, their
liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that context. It
is my considered opinion that viewed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article
XV of the 1935 Charter, specially when it is considered that the most important element of the
ratification therein contemplated is not in the word "election", which conceivably can be in many
feasible and manageable forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal
grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel
Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases that is, as an extra constitutional exercise by the people, under the leadership of
President Marcos, of their inalienable right to change their fundamental charter by any means they
may deem appropriate, the moment they are convinced that the existing one is no longer responsive
to their fundamental, political and social needs nor conducive to the timely attainment of their
national destiny. This is not only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of
the preceding constitution. Those who may feel restrained to consider this view out of respect to the
import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be deemed as
the be all and end all the nation. More important than even the Constitution itself with all its excellent
features, are the people living under it their happiness, their posterity and their national destiny.
There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the
totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have hitherto observed are
mere integral parts of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider,
however, that the President, the Vice President, the members of both Houses of Congress, not to
speak of all executive departments and bureaus under them as well as all the lower courts, including
the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true
to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because we feel that by
the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I
cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-
given attribute of the people to disengage themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be the better road to the promotion and
protection of their welfare. And once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels
Taada and Salonga that these cases be decided on the basis of conscience. That is exactly what I
am doing. But if counsel mean that only by granting their petitions can this Court be worthily the
bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are
all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively
at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio
Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmea, Roxas,
Laurel and Recto, to mention only some of them, had their differences of views and they did not
hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them
are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that
the controversies the events leading to these cases have entail will heal after the decision herein is
promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition
without costs.
MAKASIAR, J ., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new Constitution and that such procedure was no
complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue;
for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of
ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the
legitimacy of the government organized and operating thereunder. And being political, it is beyond
the ambit of judicial inquiry, tested by the definition of a political question enunciated inTaada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or
whose jurisdiction has been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and performing the obligations
defined by the new Constitution, and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social, economic and political system as
re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs.
Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court,
defined a political question as one which, under the Constitution, is "to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Taada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a constitutional convention; while the
power to ratify or reject such proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the
1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164.
Regardless of the modality of submission or ratification or adoption even if it deviates from or
violates the procedure delineated therefore by the old Constitution once the new Constitution is
ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly
authorized therefor but is subsequently adopted or recognized by the people and by the other official
organs and functionaries of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1
of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty
resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities therein
which are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas
State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital
elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285
NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307
U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the effect of both
previous rejection and attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... . This decision by the political
departments of the Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of the efficacy of
ratifications by state legislatures, in the light of previous rejection or attempted
withdrawal, should be regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the exercise of its control
over the promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr.
Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control submission of
constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place "is conclusive upon the courts." In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the Constitution, calls for
decisions by a "political department" of questions of a type which this Court has
frequently designated "political." And decision of a "political question" by the "political
department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of...government."
Proclamation under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has taken place as
the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and ratification of amendments,
we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p.
44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
great reliance that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by the
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid
cases refers to only the propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the sovereign people. As
heretofore stated, it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the government operating
thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress. It is part of the
inherent powers of the people as the repository of sovereignty in a republican
state, such as ours to make, and hence, to amend their own Fundamental Law.
Congress may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same
function, for their authority does not emanate from the Constitution they are the
very source of all powers of government, including the Constitution itself. (21 SCRA
787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1)
that both the proposal to amend and the ratification of such a constitutional amendment are political
in nature forming as they do the essential parts of one political scheme the amending process.
WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has
been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution which was being submitted to the people for ratification
satisfied the three fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs. Commission on
Elections. In the first, we held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber
purporting to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative
districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory advanced in these four (4) cases, that
the issues therein raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a
constituent assembly violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to the extent that this view may
be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from the
jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal with propriety or
wisdom or absence of either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of
power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department
of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their
Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of
the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix
I, Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the
union shall be perpetual; nor shall any alterations at any time hereafter be made in
any of them; unless such alteration be agreed to in a congress of the united states,
and be afterwards confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the
tender mercies of the legislatures of each and all of the 13 states. Experience clearly
indicated that ratification then would have had the same chance as the scriptural
camel passing through the eye of a needle. It was therefore determined to
recommend to Congress that the new Constitution be submitted to conventions in the
several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the
thirteen states ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward
Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Antifederalist, provided for ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at least, would prove
recalcitrant, it declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures, could be elected to a convention.
The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved,
formally submitted the new constitution to the states and politely faded out before the
first presidential inauguration. (The Oxford History of the Am. People, by Samuel
Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted and in spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal
Constitution. The doctrine of judicial review has become part of American constitutional law only by
virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called
to our attention, and we have found none. We think that the principle which we apply
in the instant case was very clearly applied in the creation of the constitution of the
United States. The convention created by a resolution of Congress had authority to
do one thing, and one only, to wit, amend the articles of confederation. This they did
not do, but submitted to the sovereign power, the people, a new constitution. In this
manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly
adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the
constitution of the United States, has this to say: "The convention proceeded to do,
and did accomplish, what they were not authorized to do by a resolution of Congress
that called them together. That resolution plainly contemplated amendments to the
articles of confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too deeply
seated to be reached such tentative means. They saw that the system they were
called to improve must be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority whatsoever, under the
articles of confederation, to adopt the course they did. But they knew that their labors
were only to be suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction than a constitution drafted by Mr.
Hamilton in his office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the framing or
submission of the instrument is not what gives it binding force and effect. The fiat of
the people and only the fiat of the people, can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by implication a
limitation upon the sovereign. This would be an authorized exercise of sovereign
power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court
said: "The people of a State may form an original constitution, or abrogate an old one
and form a new one, at any time, without any political restriction except the
constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were
compelled to hold that the act of February 23, 1887, is unconstitutional and void, it
would not, in our opinion, by any means follow that the amendment is not a part of
our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E.
754, the Supreme Court of Virginia hold that their state Constitution of 1902, having
been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be
regarded as an existing Constitution irrespective of the question as to whether or not
the convention which promulgated it had authority so to do without submitting it to a
vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never submitted to the people for
their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was in clear violation
of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol.
12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of
the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making,
1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor
Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered
revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p.
203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The
Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was a revolutionary constitution of the thirteen (13) states.
In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9)
years after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning thereunder is not a legitimate
government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had long
been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in
the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56
L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned
by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension on one side
and seeming misconception on the other, suggested by the argument as to the full
significance of the previous doctrine, we do not content ourselves with a mere
citation of the cases, but state more at length than we otherwise would the issues
and the doctrine expounded in the leading and absolutely controlling case Luther
v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and
it should be decided that the character government had no legal existence during the
period of time above mentioned, if it had been annulled by the adoption of the
opposing government, then the laws passed by its legislature during that time
were nullities; its taxes wrongfully collected, its salaries and compensations to its
officers illegally paid ; its public accounts improperly settled and the judgments and
sentences of its courts in civil and criminal cases null and void, and the officers who
carried their decisions into operation answerable as trespassers, if not in some cases
as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States shall
guarantee to every state in the Union a republican form of government, and shall
protect each of them against invasion; and on the application of the Legislature or of
the Executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what
government is established one in a state. For, as the United State guarantee to each
state a republican government, Congress must necessarily decide what government
is established in the state before it can determine whether it is republican or not. And
when the senators and representatives of a state are admitted into the Councils of
the Union, the authority of the government under which they were appointed, as well
as its republican character, is recognized by the proper constitutional authority. And
its decision is binding on every other department of the government, and could not
be questioned in a judicial tribunal. It is true that the contest in this case did not last
long enough to bring the matter to this issue; and as no senators or representatives
were elected under the authority of the government of which Mr. Dorr was the head,
Congress was not called upon to decide the controversy. Yet the right to decide is
placed there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the
subject, but conclude by directing attention to the statement by the court, speaking
through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187,
20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning
the 14th Amendment, and coming to consider a proposition which was necessary to
be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was
said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the
Constitution, providing that the United States shall guarantee to every state in this
Union a republican form of government, and shall protect each of them against
invasion; and on application of the legislature, or the Executive (when the legislature
cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged to the political
department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that
the question, which of the two opposing governments of Rhode Island, namely, the
charter government or the government established by a voluntary convention, was
the legitimate one, was a question for the determination of the political department;
and when that department had decided, the courts were bound to take notice of the
decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since by this
Court been, definitely determined to be political and governmental, and embraced
within the scope of the scope of the powers conferred upon Congress, and not,
therefore within the reach of judicial power, it follows that the case presented is not
within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for
want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without
authority therefor and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court
ruled:
The sole ground urged in support of the contention that Constitution proclaimed in
1902 is invalid is that it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by
direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work that the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in swearing fidelity to
it and proclaiming it, as directed thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by
the convention which assembled in the city of Richmond on the 12th day of June
1901, as the Constitution of Virginia; by the individual oaths of members to support it,
and by its having been engaged for nearly a year in legislating under it and putting its
provisions into operation but the judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by the people in their primary capacity
by peacefully accepting it and acquiescing in it, registering as voters under it to the
extent of thousands through the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United States. (p.
755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the constitution
must be duly followed, without omitting any requisite steps, courts should uphold
amendment, unless satisfied that the Constitution was violated in submitting the
proposal. ... Substance more than form must be regarded in considering whether the
complete constitutional system for submitting the proposal to amend the constitution
was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed amendment is
adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the
electors, it becomes part of the Constitution. Legal complaints to the submission may
be made prior to taking the vote, but, if once sanctioned, the amendment is
embodied therein, and cannot be attacked, either directly or collaterally, because of
any mistake antecedent thereto. Even though it be submitted at an improper time, it
is effective for all purposes when accepted by the majority. Armstrong v. King, 281
Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld
this principle and stated that: "The authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the principal in this instance) renders the act
valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new Constitution.
(Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of
Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme
Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment
once in each of the 4 calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of the election as required
by the Constitution, did not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v.
Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the
procedure for submission of the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners of the several counties to
provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply
with the requirements of Code Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not
such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and
during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have
long been desired by the people, had been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of
information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan.
17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the
1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for
these reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971
when the opposition won six out of eight senatorial seats despite the suspension of the privileges of
the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the proclamation of martial law. In both
situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of
a total of one hundred ten (110) members of the House of Representatives including the Speaker
and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmea opted to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All
the other functionaries recognize the new government and are performing their duties and exercising
their powers under the 1973 Constitution, including the lower courts. The civil courts, military
tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited
to the Republic of the Philippines before martial law continue to serve as such in our country; while
two new ambassadors have been accepted by the Philippines after the ratification of the 1973
Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to remain in their posts and
are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by
requiring all election registrars to register 18-year olds and above whether literates or not, who are
qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government
which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels
and subversives as the only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President implementing the 1973
Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:
If a set of men, not selected by the people according to the forms of law, were to
formulate an instrument and declare it the constitution, it would undoubtedly be the
duty of the courts declare its work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are overturned by power, and
a new government established. The convention, however, was the offspring of law.
The instrument which we are asked to declare invalid as a constitution has been
made and promulgated according to the forms of law. It is a matter of current history
that both the executive and legislative branches of the government have recognized
its validity as a constitution, and are now daily doing so. Is the question, therefore,
one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to
so declare it; also, if a provision of the state constitution be in conflict with the federal
constitution, to hold the former invalid. But this is a very different case. It may be
said, however, that, for every violation of or non-compliance with the law, there
should be a remedy in the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of the other departments of the
government is not an absolute one, but merely to determine whether they have kept
within constitutional limits, it is a duty rather than a power, The judiciary cannot
compel a co-equal department to perform a duty. It is responsible to the people; but if
it does act, then, when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary should protect
the rights of the people with great care and jealousy, because this is its duty, and
also because, in times of great popular excitement, it is usually their last resort, yet it
should at the same time be careful to overstep the proper bounds of its power, as
being perhaps equally dangerous; and especially where such momentous results
might follow as would be likely in this instance, if the power of the judiciary permitted,
and its duty required, the overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its colonial
character as its constitution, and no law existed providing for the making of a new
one. In 1841 public meetings were held, resulting in the election of a convention to
form a new one, to be submitted to a popular vote. The convention framed one,
submitted it to a vote, and declared it adopted. Elections were held for state officers,
who proceeded to organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state under martial law. It
called another convention, which in 1843 formed a new constitution. Whether the
charter government, or the one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the one, it was held
to be the duty of the judiciary to follow its decision. The supreme court of the United
States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it
held the federal court, yet in the argument approves it, and in substance says that
where the political department has decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court
were to hold that the convention, when it reassembled, had no power to make any
material amendment, and that such as were made are void by reason of the people
having theretofore approved the instrument. Then, next, this court must determine
what amendments were material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps the members of
the court might differ as to what amendments are material, and the result would be
confusion and anarchy. One judge might say that all the amendments, material and
immaterial, were void; another, that the convention had then the implied power to
correct palpable errors, and then the court might differ as to what amendments are
material. If the instrument as ratified by the people could not be corrected or altered
at all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court would be lacking a
promulgation by the convention; and, if this be essential, then the question would
arise, what constitution are we now living under, and what is the organic law of the
state? A suggestion of these matters shows what endless confusion and harm to the
state might and likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have ample remedy,
without the judiciary being asked to overstep the proper limits of its power. The
instrument provides for amendment and change. If a wrong has been done, it can, in
the proper way in which it should be remedied, is by the people acting as a body
politic. It is not a question of whether merely an amendment to a constitution, made
without calling a convention, has been adopted, as required by that constitution. If it
provides how it is to be done, then, unless the manner be followed, the judiciary, as
the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill,
60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391,
12 Pac. Rep. 835. But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have already arisen under
it; important rights exist by virtue of it; persons have been convicted of the highest
crime known to the law, according to its provisions; the political power of the
government has in many ways recognized it; and, under such circumstances, it is our
duty to treat and regard it as a valid constitution, and now the organic law of our
commonwealth.
We need not consider the validity of the amendments made after the convention
reassembled. If the making of them was in excess of its powers, yet, as the entire
instrument has been recognized as valid in the manner suggested, it would be
equally an abuse of power by the judiciary and violative of the rights of the people,
who can and properly should remedy the matter, if not to their liking, if it were to
declare the instrument of a portion invalid, and bring confusion and anarchy upon the
state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of
the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of
whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot
dictate to our principal, the sovereign people, as to how the approval of the new Constitution should
be manifested or expressed. The sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper method of giving assent to the new
Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmea vs.
Marcos(Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to
execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth
into the domain of political action expressly and exclusively reserved by the sovereign people
themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary
state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal
State like the United States, in order to secure and preserve the existence of the Federal Republic of
the United States against any radical innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous of the powers of the Federal government
presently granted by the American Constitution. This dangerous possibility does not obtain in the
case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in
Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the
Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department of Local Government and
Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents public officers dated March
7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of proof by shifting it
from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty
to demonstrate by clear and convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources which could be biased and hearsay, aside from the
fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary
act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of
the sovereign people their imprimatur to the basic Charter that shall govern their lives hereafter
may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the
Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well
as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III
of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate,
whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-
convicts voted in the referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would
deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of
their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years
of age or above to express their conformity or non conformity to the proposed Constitution, because
their stake under the new Charter is not any less than the stake of the more fortunate among us. As
a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned
from voting. Only those who had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
very negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the
results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or
correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming
vote of close to 15 million citizens because there was no official certification to the results of the
same from the Department of Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This
should suffice to dispose of this point. Even in the absence of such certification, in much the same
way that in passing law, Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967
Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford,
etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of
the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by
the fact that the Department of Local Governments, the Department National Defense and the
Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming
majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence,
the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof
beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower
than that of the Chief of State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and that four (4) of the five
(5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination
against the President in matters of this nature? Unsupported as their word is by any credible and
competent evidence under the rules of evidence, must the word of the petitioners prevail over that of
the Chief Executive, because they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the incumbent President
realizes that he risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people, inevitable
concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot stand on the proposition that
the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be
needed for the purpose of bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven
(7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms,
especially for the benefit of the landless and the laboring class how politics and political
bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in
Congress or outside of it; but the question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years
since the establishment of the Commonwealth government in 1935 and for the last twenty seven
(27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had
been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and
from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs
acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited
reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and carry out
the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a
limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached
upon the province exclusively reserved to and by the sovereign people. This Court did not heed to
the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume
that we alone can speak with wisdom as against the judgment of the people on the basic instrument
which affects their very lives. WE cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply
and interpret the Constitution and the laws for the benefit of the people, not against them nor to
prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time
may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to
them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution
without being a part of the government established pursuant thereto. Unlike in the Borden
case, supra, where there was at least another government claiming to be the legitimate organ of the
state of Rhode Island (although only on paper as it had no established organ except Dorr who
represented himself to be its head; in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the incumbent Chief Executive.
(See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as
such even only for domestic purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the legislative branch established
under the 1935 Constitution had been supplanted by the government functioning under the 1973
Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does
not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief
Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the
American civil war he apparently had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No.
9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he
was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as
slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney
General of Maryland. He also was a member of the Maryland state legislature for several terms. He
was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join
the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later
appointed him first as Attorney General of the United States, then Secretary of the Treasury and in
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on October 21, 1864. His death "went largely
unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union. That he had no sympathy
for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where
he pronounced that the American Negro is not entitled to the rights of an American citizen and that
his status as a slave is determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the
least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American
Bar, least of all of the American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error, which may be
due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On
the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733),
refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held
Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers,
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of
Marshal Petain would not relish the error. And neither would the members of the clan of Marshal
Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history
on his own merits. The foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as
by his eminence as law professor, author of law books, political leader, and member of the newly
integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise
his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and
idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses
if they can muster a quorum or by causing the arrest of other senators to secure a quorum and
thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17),
if they believe most vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18,
1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have
a ring of credibility, if they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts others to be brave must
first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-
36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the
members of this Court who disagree with petitioners' views are materialistic cowards or mercenary
fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers
that they are, do not recognize the sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by petitioners,
which We do not find now necessary to deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE
DISMISSED.
MAKASIAR, J ., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question
as to whether a constitutional amendment or the revised or new Constitution has been validly
submitted to the people for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question,accord all presumption of validity to the constitutional
amendment or the revised or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or amendment, although there was an
illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep.
34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69
Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga.
780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225
P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new
Constitution should not be condemned "unless our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the
1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such
presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS,
EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three
grand departments of the Government, namely, the legislative, the executive and the judicial. As a
fourth separate and distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as well as the form of the
Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the Government in its proceedings, including the printing of its own journals
(Taada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention
has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention
such prerogative, would leave it at the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit the proposed
Constitution drafted by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution,
because the same abolished the Senate by creating a unicameral National Assembly to be presided
by a Prime Minister who wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that
the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress
membership in the interim National Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords them little comfort; because the
convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1],
Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for such a referendum as well as
the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29
approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the
Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-
making power of the President under Section 63 of the Revised Administrative Code, which
expressly confers on the Chief Executive the power to promulgate administrative acts and
commands touching on the organization or mode of operation of the government or re-arranging or
re-adjusting any district, division or part of the Philippines "or disposing of issues of general
concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities
including the barrios, their creation by the President thru Presidential Decree No. 86 of December
31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973
Constitution or on whether there was further need of a plebiscite thereon, both issues of national
concern is still within the delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not
prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with
the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No.
29 expressly states "that copies of this resolution as approved in plenary session be transmitted to
the President of the Philippines and the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said
resolution that were transmitted to the Commission on Elections at best serve merely to notify the
Commission on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in
the superior position to decide when the plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country
under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued
calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated
authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive
or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the
power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria
should be required, the same are contained in the "Whereas" clauses of the Constitutional
Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of
drafting a proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the
New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in
the immediate political transition from the old to the New Constitution;" (Annex "1" of
Answer, Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in
the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission
to the people for ratification as contemplated in Article XV of the Constitution. Here it
did not do so. With Congress not being in session, could the President, by the decree
under question, call for such a plebiscite? Under such circumstances, a negative
answer certainly could result in the work of the Convention being rendered nugatory.
The view has been repeatedly expressed in many American state court decisions
that to avoid such undesirable consequence the task of submission becomes
ministerial, with the political branches devoid of any discretion as to the holding of an
election for that purpose. Nor is the appropriation by him of the amount necessary to
be considered as offensive to the Constitution. If it were done by him in his capacity
as President, such an objection would indeed have been formidable, not to say
insurmountable. If the appropriation were made in his capacity as agent of the
Convention to assure that there be submission to the people, then such an argument
loses force. The Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the appropriating arm of
the government, could conceivably make use of such authority to compel the
Convention to submit to its wishes, on pain of being rendered financially distraught.
The President then, if performing his role as its agent, could be held as not devoid of
such competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925, etc.,
emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments
during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of
questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution,
answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work
from imperfect man. The result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals
of whom they are composed. The compacts which are to embrace thirteen distinct States in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library
Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which
are ultra vires or beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Article XIV
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this
Article notwithstanding, the Prime Minister may enter into international treaties or
agreements as the national welfare and interest may require." (Without the consent
of the National Assembly.)
Article XVII
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations, are hereby recognized as legal, valid
and binding. When the national interest so requires, the incumbent President of the
Philippines or the interim Prime Minister may review all contracts, concessions,
permits, or other forms of privileges for the exploration, development, exploitation, or
utilization of natural resources entered into, granted, issued or acquired before the
ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965,
& L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio
and the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose save perhaps
what is or may be insistent with what is now known, particularly in
international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people
although insofar only as the determination of the proposals to be
made and formulated by said body is concerned but also, because
said proposals cannot be valid as part of our Fundamental Law
unless and until "approved by the majority of the votes cast at an
election which" said proposals "are submitted to the people for their
ratification," as provided in Section 1 of Article XV of the 1935
Constitution. (Pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367)
that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and
propose an entirely new Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once ratified by the sovereign
people, there can be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement
in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once
convened, the area open for deliberation to a constitutional convention ..., is practically limitless"
(citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632
[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss.
543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533,
212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P
365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that
when the people elected the delegates to the Convention and when the delegates themselves were
campaigning, such limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972
without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article
XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex
"M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and
on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly
signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal was, as President of the
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in
L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified electors defined in Article V
hereof, supervised by the Commission on Elections in accordance with the existing election law and
after such amendments shall have been published in all the newspapers of general circulation for at
least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article
XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not
possess through some kind of escamotage. This Court should not commit such a grave error in
the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the
proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is
so detailed that it specifies that the submission should be at a general or special election, or at the
election for members of the State legislature only or of all state officials only or of local officials only,
or of both state and local officials; fixes the date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authorizes expressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901];
Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution
by the legislature in the manner following: The proposed amendments shall be read
in the house in which they originate on three several days, and, if upon the third
reading, three-fifths of all the members elected to that house shall vote in favor
thereof, the proposed amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the third reading, three-fifths
of all the members elected that house shall vote in favor of the proposed
amendments, the legislature shall order an election by the qualified electors of the
state upon such proposed amendments, to be held either at the general election next
succeeding the session of the legislature at which the amendments are proposed or
upon another day appointed by the legislature, not less than three months after the
final adjournment of the session of the legislature at which the amendments were
proposed. Notice of such election, together with the proposed amendments, shall be
given by proclamation of the governor, which shall be published in every county in
such manner as the legislature shall direct, for at least eight successive weeks next
preceding the day appointed for such election. On the day so appointed an election
shall be held for the vote of the qualified electors of the state upon the proposed
amendments. If such election be held on the day of the general election, the officers
of such general election shall open a poll for the vote of the qualified electors upon
the proposed amendments; if it be held on a day other than that of a general election,
officers for such election shall be appointed; and the election shall be held in all
things in accordance with the law governing general elections. In all elections upon
such proposed amendments, the votes cast thereat shall be canvassed, tabulated,
and returns thereof be made to the secretary of state, and counted, in the same
manner as in elections for representatives to the legislature; and if it shall thereupon
appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid
to all intents and purposes as parts of this Constitution. The result of such election
shall be made known by proclamation of the governor. Representation in the
legislature shall be based upon population, and such basis of representation shall not
be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections
provided for in section 284 of this Constitution, the substance or subject matter of
each proposed amendment shall be so printed that the nature thereof shall be clearly
indicated. Following each proposed amendment on the ballot shall be printed the
word "Yes" and immediately under that shall be printed the word "No". The choice of
the elector shall be indicated by a cross mark made by him or under his direction,
opposite the word expressing his desire, and no amendment shall be adopted unless
it receives the affirmative vote of a majority of all the qualified electors who vote at
such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a
regular session thereof may propose amendments to this Constitution, and, if the
same be agreed to by a majority of all the members, elected to each house, such
proposed amendments shall be entered on the journal with the yeas and nays, and
published in at least one newspaper in each county, where a newspaper is
published, for six months immediately preceding the next general election for
Senators and Representatives, at which time the same shall be submitted to the
electors of the State for approval or rejection, and if a majority of the electors voting
at such election adopt such amendments, the same shall become a part of this
Constitution; but no more than three amendments shall be proposed or submitted at
the same time. They shall be so submitted as to enable the electors to vote on each
amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the
amendment of this constitution may be made by either branch of the legislature; and
if two thirds of all the members elected to each house shall concur therein, such
proposed amendments, together with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause the same to be published in at least
one newspaper in each county of the state where a newspaper is published, for three
months preceding the next election for representatives, at which time, the same shall
be submitted to the electors, for their approval or rejection; and if a majority of the
electors voting on said amendments, at said election, shall adopt the amendments,
the same shall become a part of the constitution. When more than one amendment
shall be submitted at the same time, they shall be so submitted as to enable the
electors to vote on each amendments separately; and not more than three
propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's
proclamation. The General Assembly may propose Amendments to this Constitution;
provided that each Amendment shall be embraced in a separate bill, embodying the
Article or Section, as the same will stand when amended and passed by three fifths
of all the members elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The bill or bills proposing
amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not
more than one may be published, then in the newspaper, and in three newspapers
published in the City of Baltimore, once a week for four weeks immediately preceding
the next ensuing general election, at which the proposed amendment or
amendments shall be submitted, in a form to be prescribed by the General
Assembly, to the qualified voters of the State for adoption or rejection. The votes cast
for and against said proposed amendment or amendments, severally, shall be
returned to the Governor, in the manner prescribed in other cases, and if it shall
appear to the Governor that a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in favor thereof, the Governor
shall, by his proclamation, declare the said amendment or amendments having
received said majority of votes, to have been adopted by the people of Maryland as
part of the Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. When two or more amendments shall be
submitted in the manner aforesaid, to the voters of this State at the same election,
they shall be so submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the
initiative. All amendments proposed by the general assembly or by the initiative shall
be submitted to the electors for their approval or rejection by official ballot title as
may be provided by law, on a separate ballot without party designation, at the next
general election, or at a special election called by the governor prior thereto, at which
he may submit any of the amendments. No such proposed amendment shall contain
more than one amended and revised article of this constitution, or one new article
which shall not contain more than one subject and matters properly connected
therewith. If possible, each proposed amendment shall be published once a week for
two consecutive weeks in two newspapers of different political faith in each county,
the last publication to be not more than thirty nor less than fifteen days next
preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in
favor of any amendment, the same shall take effect at the end of thirty days after the
election. More than one amendment at the same election shall be so submitted as to
enable the electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as
defined in Article V of the 1935 Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935 Constitution as ratified on May
14, 1935 by the people did not contain Article X on the Commission on Elections, which article was
included therein pursuant to an amendment by that National Assembly proposed only about five (5)
years later on April 11, 1940, ratified by the people on June 18, 1940 as approved by the
President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers
of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite, because the Commission on Elections was
not in existence then as was created only by Commonwealth Act No. 607 approved on August 22,
1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Taada &
Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission,
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Taada & Fernando, Constitution of the Philippines,
1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to
the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress)
and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of
the President and the Vice-President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed
the corresponding amendment to Article XV by providing therein that the plebiscite on amendments
shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935
wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in 1935 or in
the 1940 amendment by just adding a few words to Article XV by changing the last phrase to
"submitted for ratification to the qualified electors as defined in Article V hereof," or some such
similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified
electors under Article V of the 1935 Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the
term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II
on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes.
But in Section 5 of the same Article II on social justice, the term "people" comprehends not only
Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of
Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does
so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly
provides that the senators "shall be chosen at large by the qualified electors of the Philippines as
may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall
"be elected by the qualified electors." The only provision that seems to sustain the theory of
petitioners that the term "people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of
Article VI, which specifically prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions and
expressly require ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified election for
ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did
intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. As
above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified
electors" to elections of public officials. It did not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress,
indicates that there is need of a statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held
a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in English and Spanish for three consecutive
issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place
in its municipal and provincial office building and in its polling place not later than April 22, 1937"
(Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding
of aspecial election, insofar as said provisions are not in conflict with it, should apply to the said
plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board
of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it
expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517
and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and
1946, including the amendment creating the Commission on Elections, specifically provided that the
provisions of the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the
proposed amendments to the Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed amendments to the Constitution
adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for
approval or disapproval at a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on
the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492)
that the said amendments shall be published in English and Spanish in three consecutive issues of
the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be
conducted according to provisions of the Election Code insofar as the same may be applicable; that
within thirty (30) days after the election, Speaker of the National Assembly shall request the
President to call a special session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing bicameral
Congress, re-election of the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall
be published in three consecutive issues of the Official Gazette in English and Spanish at least 20
days prior to the election and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election
Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to
the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment
consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval
or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English
and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election;
that copies of the same shall be posted in a conspicuous place and in every polling place not later
than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election
Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after
the election, the Senate and House of Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all the
provisions of the election law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act
No. 357). Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8
days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to
plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there
would be no need for Congress to expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike
the various State Constitutions of the American Union (with few exceptions), Article XV does not
state that only qualified electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very detailed amending process
and specify that only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which
was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership
of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. The barrio assembly shall consist of all persons who
are residents of the barrio for at least six months, eighteen years of age or over,
citizens of the Republic of the Philippines and who are duly registered in the list of
barrio assembly members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of the
barrio council concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least
One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is given one week
prior to the meeting except in matters involving public safety or security in which case
notice within a reasonable time shall be sufficient. The barrio captain, or in his
absence, the councilman acting as barrio captain, or any assembly member selected
during the meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member designated by the
presiding officer to act as secretary shall discharge the duties of secretary of the
barrio assembly.
For the purpose of conducting business and taking any official action in the barrio
assembly, it is necessary that at least one-fifth of the members of the barrio
assembly be present to constitute a quorum. All actions shall require a majority vote
of these present at the meeting there being a quorum.
Sec. 5. Powers of the barrio assembly. The powers of the barrio assembly shall
be as follows:
a. To recommend to the barrio council the adoption of measures for
the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6
of this Act;
c. To act on budgetary and supplemental appropriations and special
tax ordinances submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and
finances of the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a
majority vote of the members present in the barrio assembly, there being a quorum,
or when called by at least four members of the barrio council; Provided, however,
That no plebiscite shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio, stating the date,
time, and place thereof, the questions or issues to be decided, action to be taken by
the voters, and such other information relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the
plebiscite. Voting procedures may be made either in writing as in regular election,
and/or declaration by the voters to the board of election tellers. The board of election
tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in
case of vacancies in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of barrio secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. Every citizen of the Philippines,
twenty-one years of age or over, able to read and write, who has been a resident of
the barrio during the six months immediately preceding the election, duly registered
in the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer
one year or more of imprisonment, within two years after service of
his sentence;
b. Any person who has violated his allegiance to the Republic of the
Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio
assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of
age, able to read and write, residents of the barrio during the 6 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may
be made ... either in writing as in regular elections, and/or declaration by the voters to the board of
election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members
qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-
36165 that only those who are 21 years of age and above and who possess all other qualifications of
a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6;
because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the
one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute
a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at
least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated
Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165 and two of the petitioners in
L-36164 participated in the enactment of Republic Act No. 3590 and should have known the
intendment of Congress in expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can
include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be
exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the
1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a
referendum conducted from January 10 to 15, 1973, should be accorded the presumption of
correctness; because the same was based on the certification by the Secretary of the Department of
Local Government and Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the said Department Secretary
should likewise be presumed; because it was done in the regular performance of his official
functions aside from the fact that the act of the Department Secretary, as an alter ego of the
President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by
the Department Secretary and the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment
to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the
bicameral Congress, creating the Commission on Elections and providing for two consecutive terms
for the President, and the 1947 parity amendment, cannot be invoked; because those amendments
were proposed by the National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional
Convention, which as heretofore discussed, has the equal power to prescribe the modality for the
submission of the 1973 Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be
utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total
votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the Department of Local
Government and Community Development that in Rizal there were 1,126,000 Yes votes and
100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269
No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department
of Local Government and Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by
way of extrapolation to the other provinces, cities and towns of the country, the result would still be
an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial law
and up to the present time, he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15,
1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies
at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred
to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,
1973, he caused the preparation of a letter addressed to Secretary Jose Roo of the Department of
Local Government and Community Development showing the results of the referendum in Pasay
City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay
City, for which reason he did not send the aforesaid letter pending submittal of the other results from
the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office of the President (Annex
5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an
affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office
asked him for the results of the referendum; that he informed her that he had in his possession
unsigned copies of such results which may not be considered official as they had then no knowledge
whether the original thereof had been signed by the mayor; and that in spite of his advice that said
unsigned copies were not official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city
(Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of
this year," does not necessarily mean that there was no such meeting in said barrio; for she may not
have been notified thereof and as a result she was not able to attend said meeting. Much less can it
be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The
barrio captain or the secretary of the barrio assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and
Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the
compilation and tabulation of the results of the referendum among the Citizens' Assemblies in
Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies;
but many results of the referendum were submitted direct to the national agencies having to do with
such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of
the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a
letter to the President dated January 15, 1973 informing him of the results of the referendum in
Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and
292,530 mentioned in said letter were based on the certificates of results in his possession as of
January 14, 1973, which results were made the basis of the computation of the percentage of voting
trend in the province; that his letter was never intended to show the final or complete result in the
referendum in the province as said referendum was then still going on from January 14-17, 1973, for
which reason the said letter merely stated that it was only a "summary result"; and that after January
15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal
for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and
Community Development, issued a certificate dated March 16, 1973 that she was shown xerox
copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the
Secretary of the Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder
Annex Pasay City" addressed to the Secretary of the Department of Local Government and
Community Development; that both xerox copies of the unsigned letters contain figures showing the
results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were
not received by her office and that her records do not show any such documents received by her
office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing
said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the
voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in
the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been
signed by him for he was then under house arrest, on the one hand, and the number of votes
certified by the Department of Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-
36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes
votes would still be overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the Secretary of the Department of
Local Government and Community Development and the figures furnished to counsel for petitioners
in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were
more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that
there was freedom of voting among the members of the Citizens' Assemblies all over the country
during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of
Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of
approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens'
Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second
set of questions including the question "Do you approve of the new Constitution?" was received only
on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the
referendum" were due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in
the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts,
40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the
referendum in certain localities may exceed the number of voters actually registered for the 1971
elections, can only mean that the excess represents the qualified voters who are not yet registered
including those who are at least 15 years of age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have been granted absolute pardon or were
sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election
Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party,
stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities
to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens' Assemblies in
Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City
is being intimidated, having been recently released from detention; because in the same letter of
Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and
legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to
Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such
suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as
amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and
Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more
impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
dated March 16, 1973 address to the Secretary of the Department of Local Government and
Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the
15-20-year-old youths (1972) will have to be estimated in order to give a 101.9%
estimate of the percentage participation of the "15-20 year old plus total number of
qualified voters" which does not deem to answer the problem. This computation
apparently fails to account for some 5.6 million persons "21 years old and over" who
were not registered voters (COMELEC), but who might be qualified to participate at
the Citizen's Assembly.
2) The official population projection of this office (medium assumption) for "15 year
olds and over" as of January 1, 1973 is 22.506 million. If total number of participants
at the Citizens' Assembly Referendum held on January 10-15, 1973 was 16.702
million, participation rate will therefore be the ratio of the latter figure to the former
which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied
number of 15-20 year olds" of 5,039,906 would represent really not only all 15-year
olds and over who participated at the Citizens' Assembly but might not have been
registered voters at the time, assuming that all the 11,661,909 registered voted at
Citizens' Assembly. Hence, the "estimate percentage participation of 15-20 years
olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the number in
this age group, which was estimated to be 4.721 million as of January 1, 1973 by the
population of "15 years old and over" for the same period which was estimated to be
22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include names of
voters who are already dead. It cannot therefore be assumed that all of them
participated at the Citizens' Assembly. It can therefore be inferred that "a total
number of persons 15 and over unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified voters that
supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to Problem] more than
1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the
official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the
referendum, the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the
difference between 16,702,000 who participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-
year olds and above but below 21 but also the qualified electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator
Sergio Osmea, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the
incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum
from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in
the 1969 Presidential elections, have several members in their families and relatives who are
qualified to participate in the referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of
choice, because the people fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably
generates fear in the individual. Even without martial law, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed, many individuals fear such
sanctions of the law because of lack of effective equal enforcement or implementation thereof in
brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction of the punishment or
sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do
not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of
the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We
search in vain for such guarantee or prescription in said organic law. The Commission on Elections
under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and
honest election." Congress, under its plenary law-making authority, could have validly prescribed in
the election law open voting in the election of public officers, without trenching upon the Constitution.
Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality.
Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a plebiscite on proposed
constitutional amendments or on a new Constitution. We have seen even before and during martial
law that voting in meetings of government agencies or private organizations is usually done openly.
This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and
barrio councils when voting on national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have
been true in certain areas, but that does not necessarily mean that it was done throughout the
country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press
Club officers who were elected by acclamation presided over by its former president, petitioner
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this
country are against the new Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly
employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want
the new Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This
is quite inaccurate; because even before the election in November, 1970 of delegates to the
Constitutional Convention, the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June, 1971 to November 29,
1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities and debated over the radio and
on television. The Philippines is a literate country, second only to Japan in the Far East, and more
literate perhaps than many of mid-western and southern states of the American Union and Spain.
Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
around the country doing a 30-minute documentary on the Philippines for American television stated
that what impressed him most in his travel throughout the country was the general acceptance of the
New Society by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and
Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-
Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of the
Philippines. President Marcos has been prompt and sure-footed in using the power
of presidential decree under martial law for this purpose. He has zeroed in on areas
which have been widely recognized as prime sources of the nation's difficulties
land tenancy, official corruption, tax evasion and abuse of oligarchic economic
power. Clearly, he knows the targets. What is not yet certain is how accurate have
been his shots. Nevertheless, there is marked public support for his leadership and
tangible alternatives have not been forthcoming. That would suggest that he may not
be striking too far from the mark.
The United States business community in Manila seems to have been re-assured by
recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the
majority of the population, do not like the reforms stipulated in the new Constitution, as well as the
decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore
stated, that all these reforms were the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as well as in public forums sponsored by concerned
citizens or civic organizations at which Con-Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1, 1971 to November
29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973 Constitution were already
expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent
assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as Commander-in-
Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs.
Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75
Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945
(23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68,
the President of the Philippines has acted in conformity with the generally accepted
principles and policies of international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his
powers as Commander in Chief of all our armed forces, as upheld by this Court in
the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said
"War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of war. "An important incident
to a conduct of war is the adoption measures by the military
command not only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war."
(Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to
create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer,
a military commission "has jurisdiction so long as the technical state
of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may
extend beyond, by treaty agreement." (Cowles, Trial of War Criminals
by Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully empowered to
consummate this unfinished aspect of war, namely the trial and punishment of war
criminals, through the issuance and enforcement of Executive Order No. 68. (83 Phil.
177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view,
when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined
martial law as "the exercise of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when other branches of the
government are unable to function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that
even in places where the courts can function, such operation of the courts may be affected by
martial law should their "functioning ... threaten the public safety." It is possible that the courts, in
asserting their authority to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may
restrict such judicial function until the danger to the security of the state and of the people shall have
been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright
dictatorship, can have no other purposes than the preservation of the independence
of the state, the maintenance of the existing constitutional order, and the defense of
the political and social liberties of the people. It is important to recognize the true and
limited ends of any practical application of the principle of constitutional dictatorship.
Perhaps the matter may be most clearly stated in this way: the government of a free
state is proceeding on its way and meeting the usual problems of peace and normal
times within the limiting framework of its established constitutional order. The
functions of government are parceled out among a number of mutually independent
offices and institutions; the power to exercise those functions is circumscribed by
well-established laws, customs, and constitutional prescriptions; and the people for
whom this government was instituted are in possession of a lengthy catalogue of
economic, political, and social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises the country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a world-wide depression
threatens to bring the nation's economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The result is a regime which can
act arbitrarily and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the particular crisis. And
the narrow duty to be pursued by this strong government, this constitutional
dictatorship? Simply this and nothing more: to end the crisis and restore normal
times. The government assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time than the attainment of that
end; and it makes no alteration in the political, social and economic structure of the
nation which cannot be eradicated with the restoration of normal times. In short, the
aim of constitutional dictatorship is the complete restoration of the status quo ante
bellum. This historical fact does not comport with philosophical theory, that there
never has been a perfect constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of government, and the
principle of constitutional dictatorship remains eternally valid no matter how often and
seriously it may have been violated in practice. (Constitutional Dictatorship, 1948 ed.,
by Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should
never be permanent in character or effect. Emergency powers are strictly conditioned
by their purpose and this purpose is the restoration of normal conditions. The actions
directed to this end should therefore be provisional. For example, measures of a
legislative nature which work a lasting change in the structure of the state or
constitute permanent derogations from existing law should not be adopted under an
emergency enabling act, at least not without the positively registered approval of the
legislature. Permanent laws, whether adopted in regular or irregular times, are for
parliaments to enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the termination of
the crisis.
But what if a radical act of permanent character, one working lasting changes in the
political and social fabric, is indispensable to the successful prosecution of the
particular constitutional dictatorship? The only answer can be: it must be resolutely
taken and openly acknowledged. President Lincoln found it necessary to proceed to
the revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right to take this
radical action. Nevertheless, it is imperative that any action with such lasting effects
should eventually receive the positive approval of the people or of their
representatives in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government exercises more powers and
respects fewer rights in order "to end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of that end the complete restoration of
peace. In our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power
by the President as Commander in Chief, upon his proclamation of martial law, is justified because,
as he professes, it is directed towards the institution of radical reforms essential to the elimination of
the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the
rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within the shortest possible time to hasten the
restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain
its existence?" That was the dilemma that vexed President Lincoln during the American Civil War,
when without express authority in the Constitution and the laws of the United States, he suspended
one basic human freedom the privilege of the writ of habeas corpus in order to preserve with
permanence the American Union, the Federal Constitution of the United States and all the civil
liberties of the American people. This is the same dilemma that presently confronts the Chief
Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic and the rights as well as lives of
the people against open rebellion, insidious subversion secession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935
Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in
peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against
the violent revolution and subversion being mounted by the economic oligarchs of the extreme right,
who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist
oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of
his constitutional and statutory powers, to save the state and to protect the citizenry against actual
and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time, should not be regarded as
peremptory commands; otherwise the dead hand of the past will regulate and control the security
and happiness of the living present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of
the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the
meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its
terms must be construed in the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely,
heed should be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions like those posed before Us the blending of idealism and practical
wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court
and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for
human betterment" and constitutional law "is applied politics using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it
is capable of growth or expansion and adaptation to new conditions. Growth implies changes,
political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard
Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the
Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra;
emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except
change. Living organisms as well as man-made institutions are not immutable. Civilized men
organize themselves into a State only for the purpose of serving their supreme interest their
welfare. To achieve such end, they created an agency known as the government. From the savage
era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and governments have mutated in their
search for the magic instrument for their well-being. It was trial and error then as it is still now.
Political philosophies and constitutional concepts, forms and kinds of government, had been
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a
particular given epoch. This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still.
As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is
inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As
Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress
to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs
least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let
fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750).
In between, the shades vary from direct democracy, representative democracy, welfare states,
socialist democracy, mitigated socialism, to outright communism which degenerated in some
countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the
seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views,
concepts, methods and techniques when brought into the actual arena of conflict as a public
functionary face to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of constitutional issues that
immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal
realism. The national leader, who wields the powers of government, must and has to innovate if he
must govern effectively to serve the supreme interests of the people. This is especially true in times
of great crises where the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion and subversion have
become covert, subtle and insidious, there should be a recognition of the corresponding authority on
the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal,
spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I know also, that laws and
institutions must go hand in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths disclosed and manners and
opinions change, with the change of circumstances, institutions must also advance, and keep pace
with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It
cannot be adequately and fairly appraised within the present ambience, charged as it is with so
much tension and emotion, if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President Abraham Lincoln who
suspended the privilege of the writ of habeas corpuswithout any constitutional or statutory authority
therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in
1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal Republic of the United States
from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No one can deny that the
successful defense and preservation of the territorial integrity of the United States was due in part, if
not to a great extent, to the proclamation of martial law over the territory of Hawaii main bastion of
the outer periphery or the outpost of the American defense perimeter in the Pacific which
protected the United States mainland not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that
the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending
the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on
September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part
of the American Supreme Court in deciding these cases against the position of the United States
President in suspending the privilege of the writ of habeas corpus in one case and approving the
proclamation of martial law in the other deliberate as an act of judicial statesmanship and
recognition on their part that an adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle
against an organized and well armed rebellion within its own borders and against a formidable
enemy from without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to
convene the Senate of the Philippines even on the assumption that the 1935 Constitution still
subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the government or its head. This
is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of
the Senate. If a majority of the senators can convene, they can elect a new Senate President and a
new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest
of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does
not justify the invocation of the power of this Court to compel action on the part of a co-equal body or
its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino
vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164
and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a
coordinate body or to command performance by the head of such a co-ordinate body of his
functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political question
doctrine almost in mockery as a magic formula which should be disregarded by this Court,
forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts, conserves the unity of our
people, strengthens the structure of the government and assures the continued stability of the
country against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate
does not depend on the place of session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on
the 4th Monday of January, unless a different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. The fact that the doors of Congress are padlocked, will not prevent the senators
especially the petitioners in L-36165 if they are minded to do so, from meeting elsewhere at
the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner
Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly
meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five
former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the
body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of
the Senate; it is not a law because it is not enacted by both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the individual members
of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification
of the 1973 Constitution is null and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-
Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least
as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should
be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the
Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must
be deemed to be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We
swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry
and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common weal. A civilized society cannot long endure without peace and order, the maintenance of
which is the primary function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is the first law of nature and ranks
second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly
submits to certain constraints on his freedom for the general welfare and the preservation of the
State itself, even as he reserves to himself certain rights which constitute limitations on the powers
of government. But when there is an inevitable clash between an exertion of governmental authority
and the assertion of individual freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no alternative but to submit to the
superior right of the government to defend and preserve the State. In the language of Mr. Justice
Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life,
the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See
Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing
men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53
L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and
security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of
disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long
before September 21, 1972, realized almost too late that he was being deceived by his partymates
as well as by the opposition, who promised him cooperation, which promises were either offered as
a bargaining leverage to secure concessions from him or to delay the institution of the needed
reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to
save the Republic from being overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing the rebels, secessionists and communists for
their own personal or political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace,
more than for their own selves, they should be willing to give the incumbent Chief Executive a
chance to implement the desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before normalcy is restored, the
people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes
the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and were burned at stake or
beheaded or hanged or guillotined by the very people whom they at first championed and later
deceived. The most bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution,
like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J ., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose
J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared
the ratification of the Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on
December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on
January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution
because they are highly unwise and objectionable and the people were not sufficiently informed
about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new
Constitution at the referendum conducted in connection therewith, as said assemblies were merely
for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the
same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as
counsel for the respondents for comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were considered motions to dismiss
which were set for hearing and extensively argued. Thereafter both parties submitted their notes and
memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as
follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or
is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending
process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs
prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an
act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question
presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a
logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the
people by putting it into practical operation, any question regarding its validity should be foreclosed
and all debates on whether it was duly or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and
that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted
against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal
effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly
contrived, what is sought to be invalidated is the new Constitution itself the very framework of the
present Government since January 17, 1973. The reason is obvious. The Presidential decrees set
up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102
simply announced the result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running on its tracks normally
and apparently without obstruction in the form of organized resistance capable of jeopardizing its
existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation to divisive controversies that may totally
destroy the social order which the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution has taken deep root and the
people are happy and contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have
done likewise. The members of the Congress did not meet anymore last January 22, 1973, not
because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The courts, except the Supreme Court by
reason of these cases, have administered justice under the new constitution. All government offices
have dealt with the public and performed their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its
assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The situation in which this
Court finds itself does not permit it to pass upon the question whether or not the new Constitution
has entered into force and has superseded the 1935 Constitution. If it declares that the present
Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing
organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in
these cases when it would have no other choice but to uphold the new Constitution as against any
other one? In the circumstances it would be bereft of judicial attributes as the matter would then be
not meet for judicial determination, but one addressed to the sovereign power of the people who
have already spoken and delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in the face of reason and pounding one's bare
head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly
pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that,
submission of the people thereto by the organization of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slow in nullifying a Constitution claimed to have been adopted not in accordance with
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70
Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and promulgated
according to the forms of law. Great interests have already arisen under it; important
rights exist by virtue of it; persons have been convicted of the highest crimes known
to the law, according to its provisions; the political power of the government has in
many ways recognized it; and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our state. We need not
consider the validity of the amendments made after the convention reassembled. If
the making of them was in excess of its power, yet as the entire instrument has been
recognized as valid in the manner suggested, it would be equally an abuse of power
by the judiciary, and violative of the rights of the people, who can and properly
should remedy the matter, if not to their liking, if it were to declare the instrument
or a portion invalid, and bring confusion and anarchy upon the state. (Emphasis
supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when
applied to a new constitution, and not an amendment, because the judicial power
presupposes an established government, and if the authority of that government is
annulled and overthrown, the power of its courts is annulled with it; therefore, if a
state court should enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing government, it
would cease to be a court, and it would be incapable of pronouncing a judicial
decision upon the question before it; but, if it decides at all, it must necessarily affirm
the existence of the government under which it exercises its judicial powers.
(Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where
it was held:
Judicial power presupposes an established government capable of enacting laws
and enforcing their execution, and appointing judges to expound and administer
them. The acceptance of the judicial office is a recognition of the authority of
government from which it is derived. And if the authority of the government is
annulled and overthrown, the power of its courts and other officers is annulled with it.
And if a State court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been put aside and
displaced by an opposing government it would cease to be a court, and be incapable
of pronouncing a judicial decision upon the question it undertook to try. If it decides at
all as a court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis
of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by
this Court would smack of plain political meddling which is described by the United States Supreme
Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it
would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals
and realize that the question before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity (Taada vs. Cuenco,
G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the
Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs.
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of government", or when there is "the
potentiality of embarrassment from multifarious pronouncements by various departments on one
question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the
"Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority possessed neither of the purse nor the sword ultimately
rests on sustained public confidence in its moral sanction. Such feeling must be
nourished by the Court's complete detachment, in fact and appearance, from political
entanglements and abstention from injecting itself into the clash of political forces in
political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The
new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis
and protection and only the cynics will deny this. This Court should not in the least attempt to act as
a super-legislature or a super-board of canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the new Constitution. The sober realization
of its proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping with the preservation of our democratic tradition
than the blatant declamations of those who wish the Court to engage in their brand of activism and
would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this
Court on January 22, 1973
1
, I held the view that this issue could be properly resolved by this Court, and
that it was in the public interest that this Court should declare then whether or not the proposed
Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was
validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that
proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that
we have mentioned because that issue is a political question that cannot be decided by this Court.
This contention by the Solicitor General is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people in their sovereign capacity or in regard
to which full discretionary authority has been delegated to the legislative, or to the executive, branch
of the government.
2
The courts have the power to determine whether the acts of the executive are
authorized by the Constitution and the laws whenever they are brought before the court in a judicial
proceeding. The judicial department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government. Each of the three departments,
within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one
department when that sphere is actually transcended. While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of such an act is brought before it in a judicial
proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be
unconstitutional.
3
It is a settled doctrine that every officer under a constitutional government must act
according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people, acting through the agency of the
judiciary. It must be remembered that the people act through the courts, as well as through the executive
or the legislature. One department is just as representative as the other, and judiciary is the department
which is charged with the special duty of determining the limitations which the law places upon all official
actions
4
. In the case of Gonzales v. Commission on Elections
5
, this Court ruled that the issue as to
whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco
6
, this Court
held that the exception to the rule that courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the construction and interpretation of
the provision of the constitution. And so, it has been held that the question of whether a constitution shall
be amended or not is a political question which is not in the power of the court to decide, but whether or
not the constitution has been legally amended is a justiciable question.
7

My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States where, after all, our constitutional system has been
patterned to a large extent made me arrive at the considered view that it is in the power of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the requirements
prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had
been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases,
before Us involve a political, or a judicial, question. I fully concur with his conclusion that the
question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention
must be done in accordance with the provisions of Section 1, Article XV of the 1935
Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a vote of
three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are
submitted to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on
March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a
convention to propose amendments to the Constitution of the Philippines. Sec. 7 of
said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the
Constitution.
It follows that from the very resolution of the Congress of the Philippines which called
for the 1971 Constitutional Convention, there was a clear mandate that the
amendments proposed by the 1971 Convention, in order to be valid and considered
part of the Constitution, must be approved by majority of the votes cast in an election
at which they are submitted to the people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16,
1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention of
the same nature,owes its existence and all its authority and power
from the existing Constitution of the Philippines. This Convention has
not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an
entirely new government born of either a war of liberation from a
mother country or of revolution against an existing government or of a
bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restraint and omnipotent all wise, and it as to such
conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current
convention came into being only because it was called by a resolution
of a joint session of Congress acting as a constituent assembly by
authority of Section 1, Article XV of the present Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now we hold
that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of the
Philippines certified that as a result of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays voted for the adoption of the
proposed Constitution, as against 743,869 who voted for its rejection, and on the
basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution
proposed by the 1971 Convention has been ratified and has thereby come into
effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not
necessary that evidence be produced before this Court to show that no elections
were held in accordance with the provisions of the Election Code. Proclamation No.
1102 unequivocally states that the proposed Constitution of 1972 was voted upon by
the barangays. It is very clear, therefore, that the voting held in these barangays is
not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election
held in accordance with the provisions of the election law, where only the qualified
and registered voters of the country would cast their votes, where official ballots
prepared for the purpose are used, where the voters would prepare their ballots in
secret inside the voting booths in the polling places established in the different
election precincts throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind
of election that was held on May 14, 1935, when the Constitution of 1935 was
ratified; on April 30, 1937, when the amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to
the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the
Constitution was ratified; and on November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the House of Representatives
and to allow the Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in
implementing the constitutional provision requiring the holding, of an election to ratify
or reject an amendment to the Constitution, has not been followed in the case of the
Constitution proposed by the 1971 Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the
ratification of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the ratification of the proposed
constitution. It is very clear, to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of Section 1 of Article X of the
1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or
not the people would still like a plebiscite to be called to ratify the new Constitution,
14,298,814 members of the barangays answered that there was no need for a
plebiscite but that the vote of the barangays should be considered a vote in a
plebiscite. It would thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in
Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said
constitutional provision are votes obtained through the election processes as
provided by law.
"An election is the embodiment of the popular will, the expression of
the sovereign power of the people. In common parlance, an election
is the act of casting and receiving the ballots, counting them, and
making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them the election of officers,
national, state, county, township the passing on various other
questions submitted for their determination." (29 C.J.S. 13, citing
Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
"Election" is expression of choice by voters of body politic. (Ginsburg
v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases,
Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with such
statutory requirements as have been set by the legislature." (People
ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of
1971:
"Sec. 2. Applicability of this Act. All elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. In order that a qualified
voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, that no person shall register more than once without
first applying for cancellation of his previous registration." (Emphasis supplied).
(Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of
citizens assemblies who are 15 years of age or over. Under the provision of Section I
of Article V of the 1935 Constitution, the age requirement to be a qualified voter is 21
years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in
very few instances, was done by the raising of hands by the persons indiscriminately
gathered to participate in the voting, where even children below 15 years of age were
included. This is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the barangays as
expressive of the popular will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by demonstrations, which is
would mean the rule of the crowd, which is only one degree higher than the rule by
the mob. Certainly, so important a question as to whether the Constitution, which is
the supreme law of the land, should be ratified or not, must not be decided by simply
gathering people and asking them to raise their hands in answer to the question of
whether the vote for or against a proposed Constitution. The election as provided by
law should be strictly observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed through the
ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the
people are sovereign, but the will of the people must be expressed in a manner as
the law and the demands a well-ordered society require. The rule of law must prevail
even over the apparent will of the majority of the people, if that will had not been
expressed, or obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the
proposed Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered a vote, the determination of it rests with those
who, by existing constitution, are accorded the right of suffrage. But
the qualified electors must be understood in this, as in many other
cases, as representing those who have not the right to participate in
the ballot. If a constitution should be abrogated and a new one
adopted, by the whole mass of people in a state acting through
representatives not chosen by the "people" in political sense of the
term, but by the general body of the populace, the movement would
be extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-
48).
"The theory of our political system is that the ultimate sovereignty is
in the people, from whom springs all legitimate authority. The people
of the Union created a national constitution, and conferred upon it
powers of sovereignty on certain subjects, and the people of each
State created a State government, to exercise the remaining powers
of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only
tie up the hands of their official agencies, but their own hands as well;
and neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this
fundamental law." (Cooley's Constitutional Limitations, 8th Edition,
Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of
that Constitution in respect of the formulation or submission of
proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson, supra, as quoted in the original
opinion, ante. The people themselves are bound by the Constitution;
and, being so bound, are powerless, whatever their numbers, to
change or thwart its mandates, except through the peaceful means of
a constitutional convention, or of an amendment according to the
mode therein prescribed, or through the exertion of the original right
of revolution. "The Constitution may be set aside by revolution, but it
can only be amended in the way it provides," said Hobson, C.J., in
McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson
vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote
was taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way
which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25
L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep.
94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment.
These provisions are as binding on the people as on the legislature,
and the former are powerless by vote of acceptance to give legal
sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16 C.J.S.
35-36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos
and confusion will result, is an inherently weak argument in favor of
the alleged constitutionality of the proposed amendment. It is obvious
that, if the Court were to countenance the violations of the
sacramental provisions Constitution, those who would thereafter
desire to violate it disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs of the
State then simply tell the Court that it was powerless to exercise one
of its primary functions by rendering the proper decree to make the
Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the will of the
majority to prevail, because the requirements of the law were not complied with. In
the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates
for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11,
1947. Monsale had duly filed his certificate of candidacy before the expiration of the
period for the filing of the same. However, on October 10, 1947, after the period for
the filing of the certificate of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of
candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission
on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate.
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in
Miagao, however, did not count the votes cast for Monsale upon the ground that the
votes cast for him were stray votes, because he was considered as having no
certificate of candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against
the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots
during the proceedings in the trial court, it appeared that Monsale had obtained 2,877
votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale.
The Court of First Instance of Iloilo decided the election protest in favor of Monsale.
Upon appeal by Nico, this Court reversed the decision of the lower court. This Court
declared that because Monsale withdrew his certificate of candidacy, his attempt to
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore
the effectiveness of his certificate of candidacy, and this Court declared Nico the
winner in spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters
would not be given effect, as declared by this Court, if certain legal requirements
have not been complied with in order to render the votes valid and effective to decide
the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens
assemblies (barangays) is not the election that is provided for in the 1935
Constitution for the ratification of the amendment to the Constitution, the affirmative
votes cast in those assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported
that 14,976,561 members of the citizens assemblies voted for the adoption as
against 743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of
the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on
January 15, 1973, as provided in Presidential Decree No. 73, is that there is no
freedom on the part of the people to exercise their right of choice because of the
existence of martial law in our country. The same ground holds true as regards to the
voting of the barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the Philippines ordered
"that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow
free public discussion of the proposed constitution, as well as my order of December
17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be suspended in the
meantime." It is, therefore, my view that voting in the barangays on January 10, 1973
was not free, and so this is one added reason why the results of the voting in the
barangays should not be made the basis for proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935
Constitution, and so it is invalid, and should not be given effect. The Constitution of
1972 proposed by the 1971 Constitutional Convention should be considered as not
yet ratified by the people of this Republic, and so it should not be given force and
effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is
that "to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty
resides in the people. But the term "people" must be understood in its constitutional meaning, and
they are "those persons who are permitted by the Constitution to exercise the elective
franchise."
8
Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President
shall hold his office during a term of four years and, together with the Vice-President chosen for the same
term, shall be elected by direct vote of the people..." Certainly under that constitutional provision,
the "people" who elect directly the President and the Vice-President are no other than the persons who,
under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in
Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all
government authority emanates from them", the "people" who exercise the sovereign power are no other
than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs.
Crescini
9
, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people,
combined, represent the sovereign power of the State. Their sovereign authority is expressed through the
ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they
choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their
representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,
10
this
Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be
achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to
be the means by which the great reservoir of power must be emptied into the receptacular agencies
wrought by the people through their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate
source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod,
11
this
Court said: "In the scheme of our present republican government, the people are allowed to have a voice
therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed
qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a
consistent and perpetual administration of the government they ordain, charge him with the performance
of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole
people. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or
class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and
welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed
along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence
Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act
No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution
conforms with the provisions of this act, it shall be submitted to the people of the
Philippine Islands for their ratification or rejection at an election to he held within
months after the date of such certification, on a date to be fixed by the Philippine
Legislature at which election, the qualified voters of the Philippine Islands shall have
an opportunity to vote directly or against the proposed constitution and ordinances
append thereto. Such election shall be held in such manner as may prescribed by
the Philippine Legislature to which the return of the election shall be made. The
Philippine Legislature shall certify the result to the Governor-General of the Philippine
Islands, together with a statement of the votes cast, and a copy of said constitution
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall
be deemed an expression of the will of the people of the Philippine Independence,
and the Governor-General shall, within thirty days after receipt of the certification
from the Philippine Legislature, issue a proclamation for the election of officers of the
government of the Commonwealth of the Philippine Islands provided for in the
Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word
"election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the
elections that were periodically held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at
which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution..." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode
of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be
done by holding an election, as the term "election" was understood, and practiced, when the 1935
Constitution as drafted. The alleged referendum in the citizens assemblies participated in by
persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ward captain, to the
municipal mayor, who in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the
enforcement and administration of all laws, relative to the conduct of elections was not only a
non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but
a downright violation of said constitutional provision. It would be indulging in sophistry to maintain
that the voting in the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by
overwhelming majority of all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their
duties apparently in observance of the provisions of the new Constitution. It could not be otherwise,
because the President of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his office had taken the steps to
implement the provisions of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed
their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their
option to serve in the interim National Assembly only one them took his oath of office; and of the 92
members of the House of Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out
of 110, took their oath of office, is an indication that only a small portion of the members of Congress
had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where
the affiant says that he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure,
that in the event the new Constitution becomes definitely effective and the interim National Assembly
convened, they can participate in legislative work in the capacity as duly elected representatives of
the people, which otherwise they could not do if they did not manifest their option to serve, and that
option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110
was issued. Of course, if the proposed Constitution does not become effective, they continue to be
members of Congress under the 1935 Constitution. Let it be considered that the members of the
House of Representatives were elected in 1969 to serve a term which will yet expire on December
31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of
some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim
National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience,
accept the reported affirmative votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be
said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under the government that has
been existing since January 17, 1973 when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as it now exists, and as it
has existed since the declaration of martial law on September 21, 1972, regardless of what
Constitution is operative whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually prevailing in our country today
circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot
agree, therefore, with my worthy colleagues in the Court who hold the view that the people have
accepted the new Constitution, and that because the people have accepted it, the new Constitution
should be considered as in force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not
come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not
the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which
declares the proposed Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I
hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV
of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election
or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines
has reassured the nation that the government of our Republic since the declaration of martial law is
not a revolutionary government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted
to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of
the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law
and that the democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. I feel that if this Court would give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it
being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been
complied with, We will be opening the gates for a similar disregard of the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved the said new Constitution, although that approval
was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court I only wish to contribute my
humble efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in
the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is
simply an endeavor on my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our
Constitution, and the protection and vindication of popular rights will be safe and
secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our
land, because, as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it
was lost because its possessors failed to stretch forth a saving hand while yet there
was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has
written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to
the petitions in these cases.
FERNANDO, J ., dissenting:
No question more momentous, none impressed with such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are far-reaching in its implications. As
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."
1
Strict
accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of the
Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the
ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have
been marked gains in the social and economic sphere, but given the premise of continuity in a regime
under a fundamental law, which itself explicitly recognizes the need for change and the process for
bringing it about,
2
it seems to me that the more appropriate course is this Court to give heed to the plea
of petitioners that the most serious attention be paid to their submission that the challenged executive act
fails to meet the test of constitutionality. Under the circumstances, with regret and with due respect for the
opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by
the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence,
subject, of course, to reservations insofar as it contains views and nuances to which I have in the past
expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not
be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected
to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of the day."
3
That is why there is
this caveat. In the United States as here, the exercise of the power of judicial review is conditioned on the
necessity that the decision of a case or controversy before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the policy
of others, they are incapable of fashioning their own solutions for social problems."
4
Nonetheless, as was
stressed by Professors Black
5
and Murphy,
6
a Supreme Court by the conclusion it reaches and the
decision it renders does not merely check the coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could
seek the aid of the judiciary. For the assent it gives to what has been done conduces to its support in a
regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in
account not only what the exigent needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of lack of understanding of the dominant
forces at work to seek a better life for all, especially those suffering from the pangs of poverty and
disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its
being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it
does not suffice that recourse be had only to what passes for scholarship in the law that could be marred
by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot,
for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same
result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of
judicial review speaks too clearly for the point to be missed that official action, even with due allowance
made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit
whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would
seek a dismissal of these petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the government possesses powers
only. Essentially then, unless such an authority may either be predicated on express or implied grant
in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It
is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and controversies that call for
decision.
7
Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms,
it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution
containing, as above noted, an explicit article on the subject of amendments, it would follow that the
presumption to be indulged in is that the question of whether there has been deference to its terms is for
this Court to pass upon. What is more, the Gonzales,
8
Tolentino
9
and Planas
10
cases speak
unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those
cases was the legality of the submission and not ratification, for from the very language of the controlling
article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,
11
"cannot
be treated as unrelated acts, but as succeeding steps in a single endeavor."
12
Once an aspect thereof is
viewed as judicial, there would be no justification for considering the rest as devoid of that character. It
would be for me then an indefensible retreat, deriving no justification from circumstances of weight and
gravity, if this Court were to accede to what is sought by respondents and rule that the question before us
is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia.
13
Thus: "The term has been made applicable to controversies clearly non-judicial and therefore
beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to which deference must be paid. It
has likewise been employed loosely to characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should
refer to such as would under the Constitution be decided by the people in their sovereign capacity or in
regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision
reached by the political branches whether in the form of a congressional act or an executive order could
be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity.
It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to
what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise
of judicial review could inquire into the question of whether or not either of the two coordinate branches
has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than
political."
14
The view entertained by Professor Dodd is not too dissimilar. For him such a term "is
employed to designate certain types of functions committed to the political organs of government (the
legislative and executive departments, or either of them) and not subject to judicial investigation."
15
After
a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of
judicial nonenforceability is important, but is not large when contrasted with the whole body of written
constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or
governmental interests."
16
Nor was Professor Weston's formulation any different. As was expressed by
him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign
has set to be decided in the courts. Political questions, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has reserved to be settled by its own
extra-governmental action."
17
What appears undeniable then both from the standpoint of Philippine as
well as American decisions is the care and circumspection required before the conclusion is warranted
that the matter at issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of complexity
and importance, deserves to be pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel
18
of Yale and Professor Freund
19
of Harvard, both of whom in turn are
unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a
more active and positive role that must be played by the United States Supreme Court in constitutional
litigation, it must be judged in the light of our own history. It cannot be denied that from the well nigh four
decades of constitutionalism in the Philippines, even discounting an almost similar period of time dating
from the inception of American sovereignty, there has sprung a tradition of what has been aptly termed as
judicial activism. Such an approach could be traced to the valedictory address before the 1935
Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in these
words: "It is one of the paradoxes of democracy that the people at times place more confidence in
instrumentalities of the State other than those directly chosen by them for the exercise of their
sovereignty." 20 It would thus appear that even then this Court was expected not to assume an attitude of
timidity and hesitancy when a constitutional question is posed. There was the assumption of course that it
would face up to such a task, without regard to political considerations and with no thought except that of
discharging its trust. Witness these words Justice Laurel in an early landmark case, People v.
Vera,
21
decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative
period of political history, it is that we are independent of the Executive no less than of the Legislative
department of our government independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment
of our sworn duty as we see it and as we understand it."
22
The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more appropriately left to others to
determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert
to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what
is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then,
too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them
from the shining cliffs of perfection. This is not to say though that it is satisfied with an empiricism
untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So
juridical realism requires. Once allowance made that for all its care and circumspection this Court manned
by human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public
acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to
understand. It has not in the past shirked its responsibility to ascertain whether there has been
compliance with and fidelity to constitutional requirements. Such is the teaching of a host of cases
from Angara v. Electoral
Commission
23
to Planas v. Commission on Elections.
24
It should continue to exercise its jurisdiction,
even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the
Solicitor-General and his equally able associates presents the whole picture. On the question of
judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of
guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial review is undemocratic."
25
He
went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous."
26
His view was precisely the opposite. Thus: "The power of constitutional review, to be
exercised by some part of the government, is implicit in the conception of a written constitution delegating
limited powers. A written constitution would promote discord rather than order in society if there were no
accepted authority to construe it, at the least in case of conflicting action by different branches of
government or of constitutionally unauthorized governmental action against individuals. The limitation and
separation of powers, if they are to survive, require a procedure for independent mediation and
construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in
the process of government."
27
More than that, he took pains to emphasize: "Whether another method of
enforcing the Constitution could have been devised, the short answer is that no such method developed.
The argument over the constitutionality of judicial review has long since been settled by history. The
power and duty of the Supreme Court to declare statutes or executive action unconstitutional in
appropriate cases is part of the living Constitution. 'The course of constitutional history,' Mr. Justice
Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Court which it would be
"stultification" for it to evade.' "
28
Nor is it only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial activism, if not its leading advocate during his
long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a
tribunal which neglects to meet the demands of judicial review. There is a statement of similar importance
from Professor Mason: "In Stein v. New York Frankfurter remarked, somewhat self-consciously perhaps,
that the 'duty of deference cannot be allowed imperceptibly to slide into abdication.' "
29
Professor
Konefsky, like Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus
his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an
undemocratic feature of our political system, it ought also to be remembered that architects of that system
did not equate constitutional government with unbridled majority rule. Out of their concern for political
stability and security for private rights, ..., they designed a structure whose keystone was to consist of
barriers to the untrammeled exercise of power by any group. They perceived no contradiction between
effective government and constitutional checks. To James Madison, who may legitimately be regarded as
the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative government: 'In framing a
government which is to be administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it to control itself.' "
30

There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the subject evince at the most fears that the
American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust whenever appropriate to the decision of a case before them. That is why it has been correctly
maintained that notwithstanding the absence of any explicit provision in the fundamental law of the
United States Constitution, that distinguished American constitutional historian, Professor Corwin,
could rightfully state that judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of cases."
31
This is not to deny
that there are those who would place the blame or the credit, depending upon one's predilection, on
Marshall's epochal opinion in Marbury v. Madison.
32
Curtis belonged to that persuasion. As he put it: "The
problem was given no answer by the Constitution. A hole was left where the Court might drive in the peg
of judicial supremacy, if it could. And that is what John Marshall did."
33
At any rate there was something
in the soil of American juristic thought resulting in this tree of judicial power so precariously planted by
Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American
legal scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a
lecture: "We are under a Constitution, but the Constitution is what the judges say it is ... ."
34
The above
statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar
association speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint
school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the
judges say it is. How, did it come about that the statement not only could be but could become current as
the most understandable comprehensive summary of American Constitutional law?"
35
It is no wonder that
Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the
scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the
unique feature of the American governmental system."
36
Let me not be misunderstood. There is here no
attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to
look askance at what for them may be inadvisable extension of judicial authority. For such indeed is the
case as reflected in two leading cases of recent vintage, Baker v. Carr,
37
decided in 1962 and Powell v.
MacCormack,
38
in 1969, both noted in the opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green 39 about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so would cut very deep into the very being of
Congress."
40
For him, the judiciary "ought not to enter this political thicket." Baker has since then been
followed; it has spawned a host of cases.
41
Powell, on the question of the power of a legislative body to
exclude from its ranks a person whose qualifications are uncontested, for many the very staple of what is
essentially political, certainly goes even further than the authoritative Philippine decision of Vera v.
Avelino,
42
It does look then that even in the United States, the plea for judicial self-restraint, even if given
voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the
comments of respondents an excerpt from Professor Freund quoting from one of his essays appearing in
a volume published in 1968. It is not without interest to note that in another paper, also included therein,
he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of
judicial activism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, the
distribution of public power, and the limitations on that power."
43
As for Professor Bickel, it has been said
that as counsel for the New York Times in the famous Vietnam papers case,
44
he was less than insistent
on the American Supreme Court exercising judicial self-restraint. There are signs that the contending
forces on such question, for some an unequal contest, are now quiescent. The fervor that characterized
the expression of their respective points of view appears to have been minimized. Not that it is to be
expected that it will entirely disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the
booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly disputations
have been centered on the standards that should govern the exercise of the power of judicial review. In
his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as
basis for decision what he termed neutral principles of constitutional law.
45
It has brought forth a plethora
of law review articles, the reaction ranging from guarded conformity to caustic criticism.
46
There was, to
be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep
governmental agencies within constitutional channels. The matter has been put in temperate terms by
Professor Frank thus: "When allowance has been made for all factors, it nevertheless seems to me that
the doctrine of political questions ought to be very sharply confined to where the functional reasons justify
it and that in a give involving its expansion there should be careful consideration also of the social
considerations which may militate against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to
the prerogatives of others. It should not be allowed to grow as a merely intellectual plant."
47

It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of
the worth and significance of judicial review in the United States. I cannot resist the conclusion then
that the views advanced on this subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Taada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General,
possess the greater weight and carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of
course, the view not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of
its force in constitutional litigation,
48
if my reading of the events and the process that led to such
proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be
confidently asserted that there was such compliance. It would be to rely on conjectural assumptions that
did founder on the rock of the undisputed facts. Any other conclusion would, for me, require an
interpretation that borders on the strained. So it has to be if one does not lose sight of how the article on
amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would
be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met.
There are American decisions,
49
and they are not few in number, which require that there be obedience
to the literal terms of the applicable provision. It is understandable why it should be thus. If the
Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission to
its commands can be shown only if each and every word is given meaning rather than ignored or
disregarded. This is not to deny that a recognition conclusive effect attached to the electorate manifesting
its will to vote affirmatively on the amendments proposed poses an obstacle to the judiciary being
insistent on the utmost regularity. Briefly stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a doctrine.
50

Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to what could be considered words
of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when
the light of the previous legislation is thrown on it. In the first Commonwealth Act,
51
submitting to the
Filipino people for approval or disapproval certain amendments to the original ordinance appended to the
1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with
the provisions of the Election Code insofar as the same may be applicable."
52
Then came the
statute,
53
calling for the plebiscite on the three 1940 amendments providing for the plebiscite on the three
1930 amendments providing for a bicameral Congress or a Senate and a House of Representatives to
take the place of a unicameral National Assembly,
54
reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve more than eight consecutive years,
55
and
creating an independent Commission on Elections.
56
Again, it was expressly provided that the election
"shall be conducted in conformity with the provisions of the Election Code in so far as the same may be
applicable."
57
The approval of the present parity amendment was by virtue of a Republic Act
58
which
specifically made applicable the then Election Code.
59
There is a similar provision in the
legislation,
60
which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an
increase in the membership of the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections.
61
That is the
consistent course of interpretation followed by the legislative branch. It is most persuasive, if not
controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives,
he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how
they register their will, Article XV had been given a definitive construction. That is why I fail to see
sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the
ratification of the revised Constitution as reflected in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply with the requirements
of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the Constitution,
62
then this Court
cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect.
Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that
is able to resolve disputes by saying the last word."
63
If the origins of the democratic polity enshrined in
the 1935 Constitution with the declaration that the Philippines is a republican state could be traced back
to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the
nation as the separate political unit in public law is there the juridical recognition of the people composing
it "as the source of political authority."
64
From them, as Corwin did stress, emanate "the highest possible
embodiment of human will,"
65
which is supreme and must be obeyed. To avoid any confusion and in the
interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case,
however, once it is manifested, it is to be accepted as final and authoritative. The government which is
merely an agency to register its commands has no choice but to submit. Its officials must act accordingly.
No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a
new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The
obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling,
they are not entirely bereft of persuasive significance. In Miller v. Johnson,
66
decided in 1892, it was
set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky,
providing for the calling of a convention for the purpose of framing a new constitution and the election of
delegates. It provided that before any form of constitution made by them should become operative, it
should be submitted to the vote of the state and ratified by a majority of those voting. The constitution
then in force authorized the legislature, the preliminary steps having been taken, to call a convention "for
the purpose of readopting, amending, or changing" it contained no provision giving the legislature the
power to require a submission of its work to a vote of the people. The convention met in September,
1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. When the convention reassembled, the delegates made numerous
changes in instrument. As thus amended, it was promulgated by the convention of September 28, 1891,
as the new constitution. An action was brought to challenge its validity. It failed in the lower court. In
affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by
the people according to the forms of law, were to formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this
the courts of the existing government must resist until they are overturned by power, and a new
government established. The convention, however, was the offspring of law. The instrument which we are
asked to declare invalid as a constitution has been made and promulgated according to the forms of law.
It is a matter of current history that both the executive and legislative branches of the government have
recognized its validity as a constitution, and are now daily doing so. ... While the judiciary should protect
the rights of the people with great care and jealousy, because this is its duty, and also because; in times
of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to
overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the power of the judiciary permitted,
and its duty requires, the overthrow of the work of the convention."
67
InTaylor v. Commonwealth,
68
a
1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was
ordained and promulgated by the convention without being submitted for ratification or rejection by the
people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of
1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to
revise and amend the Constitution of 1869. The result of the work of the convention has been recognized,
accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to
it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the
city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the people in their primary capacity by
peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands
throughout the state, and by voting, under its provisions, at a general election for their representatives in
the Congress of the United States. The Constitution having been thus acknowledged and accepted by the
office administering the government and by the people of the state, and there being no government in
existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding
that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their
obedience and loyal allegiance."
69

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the
revised Constitution has been accepted by the Filipino people. What is more, so it has been argued,
it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they
could allege that there was more than just mere acquiescence by the sovereign people. Its will was
thus expressed formally and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference. Nor is the fact that
Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored.
The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question
may be raised. This Court is to respect what had thus received the people's sanction. That is not for
me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than
what the courts do in election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the evidence flowing from the
conditions of peace and stability. There thus appears to be conformity to the existing order of things.
The daily course of events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the Senators, have signified
their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be
really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of
popular will did take place during a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free market of ideas. If it were
thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut
decision either way. One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by individuals with their personal
concerns uppermost in mind, worried about their immediate needs and captive to their existing
moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open
to any valid objection because in the final analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to
give expression to what was really in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is
forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed
brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is
not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For
there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted
with truth, especially in the field of social and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then too it could resolve what appeared to be
the deepening contradictions of political life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in democratic processes. It is not too much to
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values
out of which democracy grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era
that is the present. That is why for some what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority, there
is not, while these lawsuits are being further considered, the least interference, with the executive
department. The President in the discharge of all his functions is entitled to obedience. He remains
commander-in-chief with all the constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of
their ways. They are free to act according to its tenets. That was so these past few weeks, even
petitions were filed. There was not at any time any thought of any restraining order. So it was before.
That is how things are expected to remain even if the motions to dismiss were not granted. It might
be asked though, suppose the petitions should prevail? What then? Even so, the decision of this
Court need not be executory right away. Such a disposition of a case before this Court is not novel.
That was how it was done in the Emergency Powers Act controversy.
70
Once compliance is had with
the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised
charter is free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions
that cannot stand the test of actuality. What is more, it may give the impression of reliance on what
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. That may be so, but I find it impossible to transcend what for me are the
implications of traditional constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed away by the advancing
tides of the present. The introduction of novel concepts may be carried only so far though. As
Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the
primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion
that remains."
71
Moreover what made it difficult for this Court to apply settled principles, which for me
have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect
immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial
power to be exercised, no complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not see sufficient justification for the
orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the basic premises of a constitutional democracy,
as I understand them and as set forth in the preceding pages, compel me to vote the way I did.
TEEHANKEE, J ., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues
of the cases at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is
the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has
been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the peoplefor their ratification."
1

A necessary corollary issue is whether the purported ratification of the proposed Constitution as
signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in aplebiscite called for the purpose and except as
herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all
amendments thereto."
2

Respondents contend that "(A)lthough apparently what is sought to be annulled is
Proclamation No. 1102, what petitioners really seek to invalidate is the new
Constitution", and their actions must be dismissed, because:
"the Court may not inquire into the validity of the procedure for ratification" which
is "political in character" and that "what is sought to be invalidated is not an act of the
President but of the people;
"(T)he fact of approval of the new Constitution by an overwhelming majority of the
votes cast asdeclared and certified in Proclamation No. 1102 is conclusive on the
courts;
"Proclamation No. 1102 was issued by the President in the exercise of legislative
power under martial law. ... Alternatively, or contemporaneously, he did so as "agent"
of the Constitutional Convention;"
"alleged defects, such as absence of secret voting, enfranchisement of persons
less than 21 years, non supervision (by) the Comelec are matters not required by
Article XV of the 1935 Constitution"; (sic)
"after ratification, whatever defects there might have been in the procedure are
overcome andmooted (and muted) by the fact of ratification"; and
"(A)ssuming finally that Article XV of the 1935 Constitution was not strictly
followed, the ratification of the new Constitution must nonetheless be respected. For
the procedure outlined in Article XV wasnot intended to be exclusive of other
procedures, especially one which contemplates popular and direct participation of the
citizenry ... ."
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102
would really be "invalidating the new Constitution", the terms and premises of the issues have to be
defined.
Respondents themselves assert that "Proclamation No. 1102 ... is plainly
merely declaratory of the fact that the 1973 Constitution has been ratified and has
come into force.
4

The measure of the fact of ratification is Article XV of the 1935 Constitution. This has
been consistently held by the Court in the Gonzales:
5
and Tolentino
6
cases.
In the Tolentino case, this Court emphasized "that the provisions of Section 1 of
Article XV of the Constitution, dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments of the
government. It must be added that ... they are no less binding upon the people."
7

In the same Tolentino case, this Court further proclaimed that "as long as any
amendment is formulated and submitted under the aegis of the present Charter, any
proposal for such amendment which is not in conformity with the letter, spirit and intent of
the Charter for effecting amendments, cannot receive the sanction of this Court."
8

As continues to be held by a majority of this Court, proposed amendments to the
Constitution "should be ratified in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and duly registered voters"
9
and
under the supervision of the Commission on Elections.
10

Hence, if the Court declares Proclamation 1102 null and void because on its face, the
purported ratification of the proposed Constitution has not faithfully nor substantially
observed nor complied with the mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the proposed new Constitution but would be
simply declaring that the announced fact of ratification thereof by means of the Citizens
Assemblies referendums does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by respondent to be "plainly merely
declaratory" of the disputed fact of ratification, they cannot assume the very fact to be
established and beg the issue by citing the self-same declaration as proof of the
purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as
having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and
the question of whether "confusion and disorder in government affairs would (not) result" from a
judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf
of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers
cases,
11
wherein the Court in its Resolution of September 16, 1949 after judgment was
initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that
the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in
pursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at the latest in
May, 1946 when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen
under executive orders "issued in good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced extensive effects on the life of the nation"
in the same manner as may have arisen under the bona fide acts of the President now in the
honest belief that the 1972 Constitution had been validly ratified by means of the Citizens
Assemblies referendums and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and innocent parties thereby
avoided as follows:
Upon the other hand, while I believe that the emergency powers had ceased in June
1945, I am not prepared to hold that all executive orders issued thereafter under
Commonwealth Act No. 671, areper se null and void. It must be borne in mind that
these executive orders had been issued in good faith and with the best of intentions
by three successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance, Executive Order No.
73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public
works; Executive Order No. 86, issued on January 7, 1946, amending a previous
order regarding the organization of the Supreme Court; Executive Order No. 89,
issued on January 1, 1946, reorganizing Courts of First Instance; Executive Order
No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger;
and other executive orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these executive orders will be
unquestionably serious and harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for instance, whether or not they
have been ratified by Congress expressly or impliedly, whether their purposes have
already been accomplished entirely or partially, and in the last instance, to what
extent; acquiescence of litigants; de facto officers; acts and contracts of parties
acting in good faith; etc. It is my opinion that each executive order must be viewed in
the light of its peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to public interest and
innocent parties.
12

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null
and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter."
13

Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for
annulment despite the great difficulties and possible "harmful consequences" in the following
passage, which bears re-reading:
However, now that the holding of a special session of Congress for the purpose of
remedying the nullity of the executive orders in question appears remote and
uncertain, I am compelled to, and do hereby, give my unqualified concurrence in the
decision penned by Mr. Justice Tuason declaring that these two executive orders
were issued without authority of law.
While in voting for a temporary deferment of the judgment I was moved by the belief
that positive compliance with the Constitution by the other branches of the
Government, which is our prime concern in all these cases, would be effected, and
indefinite deferment will produce the opposite result because it would legitimize a
prolonged or permanent evasion of our organic law. Executive orders which are, in
our opinion, repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring opinion, would
come to pass should the said executive orders be immediately declared null and void
are still real. They have not disappeared by reason of the fact that a special session
of Congress is not now forthcoming. However, the remedy now lies in the hands of
the Chief Executive and of Congress, for the Constitution vests in the former the
power to call a special session should the need for one arise, and in the latter, the
power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a remote
possibility, for under the circumstances it fully realizes its great responsibility of
saving the nation from breaking down; and furthermore, the President in the exercise
of his constitutional powers may, if he so desires, compel Congress to remain in
special session till it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a
permanent way of life in this country, if each of the great branches of the
Government, within its own allocated sphere, complies with its own constitutional
duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure
should be maintained firm and strong, hard as the best of steel, so as to insure its
growth and development along solid lines of a stable and vigorous democracy.
14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the
rental and export control executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to respectively.' "
15

It should be duly acknowledged that the Court's task of discharging its duty and responsibility has
been considerably lightened by the President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution.
It can and will probably determine the validity of this Constitution. I did not want to talk about this
because actually there is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint additional members to the Supreme
Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that
power."
16

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that
the questions of whether the submission of the proposed constitutional amendment of the State
Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political questions, we may echo the words therein of
Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged."
17

In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are
faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that the
Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only)
the hands of their official agencies, but their own hands as well"
18
in the exercise of their sovereign
will or a liberal and flexible stand that would consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at
which the amendments are submitted to the people for their ratification",
19
participated
in only by qualified and duly registered voters twenty-one years of age or over
20
and duly supervised by
the Commission on Elections,
21
in accordance with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said requirements on the theory
urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct participation of the
citizenry",
22
that the constitutional age and literacy requirements and other statutory safeguards for
ascertaining the will of the majority of the people may likewise be changed as "suggested, if not
prescribed, by the people (through the Citizens Assemblies) themselves",
23
and that the Comelec is
constitutionally "mandated to oversee ... elections (of public officers) and not plebiscites."
24

To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case
of Marbury vs. Madison
25
the U.S. Supreme Court's power of judicial review and to declare void laws
repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall
expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the
Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts on the part
of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark
case of Angara vs. Electoral Commission,
26
"(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations of good government and restrictions embodied in our
Constitution are real as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which the instrument secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland
27
the
"climactic phrase,"
28
"we must never forget that it is a constitution we are expounding," termed by
Justice Frankfurter as "the single most important utterance in the literature of constitutional law most
important because most comprehensive and comprehending."
29
This enduring concept to my mind
permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we rejected
the contentions on the Convention's behalf "that the issue ... is a political question and that the
Convention being a legislative body of the highest order is sovereign, and as such, its acts impugned by
petitioner are beyond the control of Congress and the Courts."
30

This Court therein made its unequivocal choice of strictly requiring faithful (which really includes
substantial) compliance with the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an
advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend
Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed in the future ... on other portions of the
amended section", this Court stated that "the constitutional provision in question (as proposed)
presents no doubt which may be resolved in favor of respondents and intervenors. We do not
believe such doubt can exist only because it is urged that the end sought to be achieved is to
be desired. Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M.
Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantage of the precedent
and continue the destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of their own folly."
31

2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the existing Constitution.
Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is the
most valued power, second to none, of the people in a constitutional democracy such
as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects
thelives, fortunes, future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignty, every degree of care is
taken in preparing and drafting it. A constitution worthy of the people for deliberation
and study. It is obvious that correspondingly,any amendment of the Constitution is of
no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the very nature of
things, the drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they may impose
upon themselves. This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter see to it that their
handiwork is not lightly treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie
in the delegates of any subsequent convention to claim that they may ignore and
disregard such conditions because they are powerful and omnipotent as their original
counterparts.
32

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced
in Gonzales vs. Comelec
33
, thus:
We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not
only sufficient time but ample basisfor an intelligent appraisal of the nature of
amendment per se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole. In the context of the present state of things,
where the Convention hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to present to people any
single proposal or a few of them cannot comply with this requirement. We are of the
opinion that the present Constitution does not contemplate in Section 1 of Article XV
a plebiscite or "election" wherein the people are in the dark as to frame of reference
they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors
themselves are stating the sole purpose of the proposed amendment is to enable the
eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, 'no proper submission.' "
34

4. Four other members of the Court
35
in a separate concurrence in Tolentino, expressed their "essential
agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimumrequirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of
the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency
within its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission, intelligent
consent or rejection.
36

They stressed further the need for undivided attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail the average
voter. Why should the voting age be lowered at all, in the first place? Why should the
new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even
16 or 15? Is the 18-year old as mature as the 21-year old, so that there is no need of
an educational qualification to entitle him to vote? In this age of permissiveness and
dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-
year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on
the said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment ratified at
this particular time? Do some of the members of the Convention have future political
plans which they want to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it thereby mean that the 18-year
old should not also shoulder the moral and legal responsibilities of the 21-year old?
Will he be required to compulsory military service under the colors? Will the
contractual consent be reduced to 18 years? If I vote against the amendment, will I
not be unfair to my own child who will be 18 years old, come 1973?
The above are just samplings from here, there and everywhere from a domain (of
searching questions) the bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany. And the answers
cannot except as the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election
time will not be,sufficiently informed of the meaning, nature and effects of the
proposed constitutional amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are effectively distracted
from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections and
politics. They cannot thus weigh in tranquility the need for and the wisdom proposed
amendment.
37

5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending
process "in favor of allowing the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule
of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been ordained by
the 'Filipino people, imploring the aid of Divine Providence.' Section 1 of Article XV is
nothing than a part of the Constitution thus ordained by the people. Hence, in
construing said section, We must read it as if thepeople had said, 'This Constitution
may be amended, but it is our will that the amendment must
beproposed and submitted to Us for ratification only in the manner herein provided.'
... Accordingly, the real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of allowing the
sovereign people to express their decision on the proposed amendments, if only
because it is evident that the very idea of departing from the fundamental law
is anachronistic in the realm of constitutionalism and repugnant to the essence of the
rule of law; rather, it is whether or not the provisional nature of the proposed
amendment and themanner of its submission to the people for ratification or
rejection conform with the mandate of the people themselves in such regard, as
expressed in, the Constitution itself.
38

6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and
contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding
this case to be carried astray by considerations other than the imperatives of the rule of law and of
the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the Constitution imposes upon
the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and
construing its provisions in appropriate cases with the proper parties and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge that duty.
39

7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the
motion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows:
On the premature submission of a partial amendment proposal, with a "temporary
provisional or tentative character": "... a partial amendment would deprive the
voters of the context which is usually necessary for them to make a reasonably
intelligent appraisal of the issue submitted for their ratification or rejection. ... Then,
too, the submission to a plebiscite of a partial amendment, without adefinite frame of
reference, is fraught with possibilities which may jeopardize the social fabric. For one
thing, it opens the door to wild speculations. It offers ample opportunities for
overzealous leaders and members of opposing political camps to unduly exaggerate
the pros and cons of the partial amendment proposed. In short, it is apt to breed false
hopes and create wrong impressions. As a consequence, it is bound to unduly strain
the people's faith in the soundness and validity of democratic processes and
institutions.
On the plea to allow submission to the sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with the letter and spirit of the
Constitution: "The view, has, also, advanced that the foregoing considerations are
not decisive on the issue before Us, inasmuch as thepeople are sovereign, and the
partial amendment involved in this case is being submitted to them. The issue before
Us is whether or not said partial amendment may be validly submitted to the people
for ratification "in a plebiscite coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the people. What is more, the
Constitution does not permit its submission to the people. The question sought to be
settled in the scheduled plebiscite is whether or not the people are in favor of the
reduction of the voting age.
On a "political" rather than "legalistic" approach: "Is this approach to the problem
too "legalistic?" This term has possible connotations. It may mean strict adherence to
the law, which in the case at bar is the Supreme Law of the land. On point, suffice it
to say that, in compliance with the specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely
that the somewhat strained interpretation of the Constitution being urged upon this
Court be tolerated or, at least, overlooked, upon the theory that the partial
amendment on voting age is badly needed and reflects the will of the people,
specially the youth. This course of action favors, in effect, adoption of apolitical
approach, inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the obvious message of
the mass media, and, at times, of the pulpit, the Court has been literally bombarded
with scores of handwritten letters, almost all of which bear the penmanship and the
signature of girls, as well as letterhead of some sectarian educational institutions,
generally stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to bear heavily
upon the Court for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof
are political questions beyond our province. In fact, respondents and the intervenors
originally maintained that We have no jurisdiction to entertain the petition herein,
upon the ground that the issue therein raised is a political one. Aside from the
absence of authority to pass upon political question, it is obviously improper and
unwise for the bench to develop into such questions owing to the danger of getting
involved in politics, more likely of a partisan nature, and, hence, of impairing the
image and the usefulness of courts of justice as objective and impartial arbiters of
justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute a grievous
disservice to the people and the very Convention itself. Indeed, the latter and the
Constitution it is in the process of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a Constitution would not be worthy of its
name, and the Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental tenets set forth
in the Constitution and compliance with its provisions were not obligatory. If we, in
effect, approved, consented to or even overlooked a circumvention of said tenets and
provisions, because of the good intention with which Resolution No. 1 is animated,
the Court would thereby become theJudge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in nature.
This is confirmed by the plea made in the motions for reconsideration in favor of the
exercise of judicial statesmanship in deciding the present case. Indeed, "politics" is
the word commonly used to epitomize compromise, even with principles, for the sake
of political expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In any event, politics, political
approach, political expediency and statesmanship are generally associated, and
often identified, with the dictum that "the end justifies the means." I earnestly hope
that the administration of justice in this country and the Supreme Court, in particular,
will adhere to or approve or indorse such dictum."
40

Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the
submission of the proposed amendment lowering the voting age to the plebiscite on November 8,
1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in so far as "to allow young people
who would be governed by the Constitution to be given a say on what kind of Constitution they will
have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the Constitution must seek a
valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution"
41
so that there may be "submitted, not piece-meal, but by way of
complete and final amendments as an integrated whole (integrated either with the subsisting Constitution
or with the new proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and principles above-enunciated can
hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals
for amendments of particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in
toto, and in the latter case would rise to an entirely new Constitution. Where this Court held
in Tolentino that "any amendment of the Constitution is of no less importance than the whole
Constitution itself and perforce must be conceived and prepared with as much care and
deliberation", it would appeal that the reverse would equally be true; which is to say, that the
adoption of a whole new Constitution would be of no less importance than any particular amendment
and therefore the necessary care and deliberation as well as the mandatory restrictions and
safeguards in the amending process ordained by the people themselves so that "they (may)
be insulated against precipitate and hasty actions motivated by more or less passing political moods
or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the
amending processonly "by approval by a majority of the votes cast at an election at which the (duly
proposed) amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the
right of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one
years of age or over with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an independent Commission on Elections with
"exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate and more, as ruled by this Court in Tolentino, in the case of
proposed constitutional amendments, insuring proper submission to the electorate of such
proposals.
42

2. A Massachussets case
43
with a constitutional system and provisions analogous to ours, best defined
the uses of the term "people" as a body politic and "people" in the political sense who are synonymous
with the qualified voters granted the right to vote by the existing Constitution and who therefore are "the
sole organs through which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat varying significations
dependent upon the connection in which it is used. In some connections in the Constitution it is
confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and educated, but also those
who are wholly or in part dependents and charges upon society by reason of immaturity, mental or
moral deficiency or lack of the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness,
except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed by a
constitution and common laws in a "social compact ... for the common good" and in another sense of
"people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense,
"people" comprises many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and protection established by the
Constitution. 'People' in this aspect is coextensive with the body politic. But it is obvious that 'people'
cannot be used with this broad meaning of political signification. The 'people' in this connection
means that part of the entire body of inhabitants who under the Constitution are intrusted with the
exercise of the sovereign power and the conduct of government. The 'people' in the Constitution in a
practical sense means those who under the existing Constitution possess the right to exercise the
elective franchise and who, while that instrument remains in force unchanged, will be the sole
organs through which the will of the body politic can be expressed. 'People' for political
purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political
power, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulse of mere
majorities."
44

From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a
majority of thevotes cast at an election at which the amendments are submitted to the people for
their ratification", it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the
Constitution since only "people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the will of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional requirements laid down for the process of amending in toto or in part the supreme
law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio
plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a
majority vote of the members present in the barrio assembly, there being a quorum, or when called
by at least four members of the barrio council: Provided, however, That no plebiscite shall be held
until after thirty days from its approval by either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information relevant to the holding of the
plebiscite."
46

As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio
assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made
either in writing as in regular elections, and/or declaration by the voters to the board of election
tellers."
47

The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of the barrio secretary is necessary."
48

The qualifications for voters in such barrio plebiscites and elections of barrio officials
49
comply with
the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC.
10. Qualifications of Voters and Candidates. Every citizen of the Philippines, twenty one years of age or
over, able to read and write, who has been a resident of the barrio during the six months immediately
preceding the election, duly registered in the list of voters by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections."
50

IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the
above-cited constitutional articles have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution
itself
51
has been called or held, there cannot be said to have been a valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just five
provinces
52
between the reports as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter reports respondents disclaimed inter
alia as not final and complete or as not signed;
53
whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National Assembly provided in Article
XVII, section 1 thereof,
54
may be considered as valid; the allegedly huge and uniform votes reported; and
many others.
3. These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. Under Article XV,
section 1 of our Constitution, amendments thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the
Commission on Elections, and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure the true ascertainment
of the results of the vote and interested parties would have an opportunity to thresh out properly
before the Comelec all such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the
mandatory amending process required by the (1935) Constitution was not observed, the cases at
bar need not reach the stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum results since the
purported ratification is rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of
the Constitutional Convention"
55
under Resolution No. 5844 approved on November 22, 1973, and "as
agent of the Convention the President could devise other forms of plebiscite to determine the will of the
majority vis-a-vis the ratification of the proposed Constitution."
56

The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency"
was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed
new Constitution on an appropriate date, under the charge of the Comelec, and with a reasonable
period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the
resolution, the resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission
on Elections for implementation."
He suggested that in view of the expected approval of the final draft of the new
Constitution by the end of November 1972 according to the Convention's timetable, it
would be necessary to lay the groundwork for the appropriate agencies of the
government to undertake the necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was
unnecessary because section 15, Article XVII on the Transitory Provision, which had
already been approved on second and third readings, provided that the new
constitution should be ratified in a plebiscite called for the purpose by the incumbent
President. Delegate Duavit replied that the provision referred to did notinclude
the appropriation of funds for the plebiscite and that, moreover, the resolution was
intended to serve formal notice to the President and the Commission on Elections to
initiate the necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an
information campaign was necessary in order to properly apprise the people of the
implications and significance of the new charter. Delegate Duavit agreed, adding that
this was precisely why the resolution was modified to give the President the
discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President
informing him of the adoption of the new Constitution would not suffice considering
that under Section 15 of the Transitory Provisions, the President would be duty-
bound to call a plebiscite for its ratification. Delegate Duavit replied in the negative,
adding that the resolution was necessary to serve notice to the proper authorities
to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the
holding of theplebiscite would be laid down by the Commission on Elections in
coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a
partial lifting of martial law in order to allow the people to assemble peaceably to
discuss the new Constitution. Delegate Duavit suggested that the Committee on
Plebiscite and Ratification could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair declared that
there was one more interpellant and that a prior reservation had been made for the
presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was actually no need
for such a resolution in view of the provision of section 15, Article XVII on the
Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision
did not provide for the funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to the period of
amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the
resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote,
the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoez moved for nominal voting. Submitted to a vote, the motion
was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a
show of hands.
57

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promul
gated:
June 4,
1973 *
ANTONIO, J ., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I
It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate measures
legislative in character, for the successful prosecution of such objectives. For the "President's power
as Commander- in-chief has been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national power
and the capacity of the President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The President: Office &
Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis government in this
country. In terms of power, crisis government in a constitutional democracy entails the concentration
of governmental power. "The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of
crisis... The power of the state in crisis must not only be concentrated and expanded, it must be
freed from the normal system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of constitutional restraints"
(Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is channeled
through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction,
and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice
Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all rights entrusted by the
constitution to its care." The marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in time of emergency defy precise
definition since their extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in times of crisis, rather
than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with
his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary
measures which he took the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury
to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence",
the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention
of persons "who were represented to him" as being engaged in or contemplating "treasonable
practices" all this for the most partwithout the least statutory authorization. Those actions were
justified by the imperatives of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be
unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of
Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President:
Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting
the domestic problems as a consequence of a great war, an indefinite power must be attributed to
the President to take emergency measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative enlargement during the first and
second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War
and World War I, the concept has been expanded in World War II to include the "emergency"
preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the
First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-
in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of
them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into shooting war. This step occurred
in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The
truth is, they were not overage, but had been recently reconditioned and recommissioned. ...
Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose
of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin &
Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office
and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet President
Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause
created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the
basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert his civil and military as well
as his moral authority to keep the defense efforts of the United States a going concern" as well as "to
obtain supplies for which Congress has appropriated money, and which it has directed the President
to obtain." On a similar justification, other plants and industries were taken over by the government.
It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153,
[1952]), the Supreme Court of the United States did not sustain the claims that the President could,
as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order the
seizure of most of the country's steel mills. The Court however did not face the naked question of the
President's power to seize steel plants in the absence of any congressional enactment or
expressions of policy. The majority of the Court found that this legislative occupation of the field
made untenable the President's claim of authority to seize the plants as an exercise of inherent
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the absence of restrictive
legislation, a residual or resultant power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The same view was shared with
vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three
dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with
approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of
the President to order withdrawals from the public domain not only without Congressional sanction
but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the
view that the President in times of a grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin and Koenig,
"Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency
conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to
fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may be all the members of
society are to be preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to
contend that we are not faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been expanded to meet the exigencies
of new dangers and crisis that directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting
the realization of constitutional limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from
which the New Deal may be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures
the Court invoked the justification of 'emergency.' In the final result constitutional practices of
wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional government is
resisted openly by large numbers of citizens who are engaged in violent insurrection
against enforcement of its laws or are bent on capturing it illegally or destroying it
altogether. The third crisis, one recognized particularly in modern times as
sanctioning emergency action by constitutional governments, iseconomic
depression. The economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably dictatorial
character in many democracies. It was thereby acknowledged that an economic
existence as a war or a rebellion. And these are not the only cases which have
justified extraordinary governmental action in nations like the United States. Fire,
flood, drought, earthquake, riots, great strikes have all been dealt with by unusual
and of dictatorial methods. Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, reemployment of twelve million jobless citizens
will not be effected through a scrupulous regard for the tenets of free enterprise,
hardships caused by the eruptions of nature cannot be mitigated letting nature take
its course. The Civil War, the depression of 1933 and the recent global conflict were
not and could not have been successfully resolved by governments similar to those
of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship Crisis of Government in the Modern Democracies, p. 6
[1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not having
been done inaccordance with the provisions of existing election laws, which only qualified voters
who are allowed to participate, under the supervision of the Commission on Elections, the new
Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that
Article XV of the 1935 Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed new Constitution the provisions of the
election law and those of Article V and X of the old Constitution. We search in vain for any provision
in the old charter specifically providing for such procedure in the case of a total revision or a rewriting
of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing constitution.
Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the
other hand, envisages a change of only specific provisions. The intention of an act to amend is not
the change of the entire constitution but only theimprovement of specific parts of the existing
constitution of the addition of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to the needs of the times.
1
The
1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental
charter embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the Philippines and that of
the United States expressly provide merely for methods of amendment. They are silent on the
subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of the United States even
were such conventions called merely for the purpose of proposing and submitting amendments to
the people. For in the final analysis, it is the approval of the people that gives validity to any proposal
of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or procedure for
the revision or for the approval of a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not disabled from exercising their right as the
ultimate source of political power from changing the old constitution which, in their view, was not
responsive to their needs and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with new dynamism the realization
of their true longings and aspirations, except in the manner and form provided by Congress for
previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of
the youth in the process of ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political power is inherent in the people
collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where
the Courts held that the submission of the proposed amendment was illegal due to the absence of
substantial compliance with the procedure prescribed by the constitution, the procedure prescribed
by the state Constitution, is so detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and other definite standards,
from which the court could safely ascertain whether or not the submission was in accordance with
the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the state Constitution of
Minnesota which clearly prescribed in detail the procedure under which the Constitution may be
amended or revised.
2
This is not true with our Constitution. In the case of revision there are no
"standards meet for judicial judgment."
3

The framers of our Constitution were free to provide in the Constitution the method or procedure for
the revision or rewriting of the entire constitution, and if such was their intention, they could and
should have so provided. Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for their amendment and methods for their revision.
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the
1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the
law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for
the revision or complete change of the Constitution, it is evident that the people have reserved such
power in themselves. They decided to exercise it not through their legislature, but through a
Convention expressly chosen for that purpose. The Convention as an independent and sovereign
body has drafted not an amendment but a completely new Constitution, which decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. In view of the inability of Congress to act, it was within the constitutional powers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all the reforms set in motion
under the new society, to root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and
procedure taken. "When the people adopt completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the
people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and
free governments are founded on their authority and instituted for their benefit. Thus Section 1 of
Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the term people refers to the
entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is
only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already effective as it has been accepted and acquiesced in by the people as
shown by their compliance with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in undisputed authority and
dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity,
because under a regime of martial law the people are bound to obey and act in conformity with the
orders of the President, and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of other nations on an
entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as
a general rule martial law is the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in emergency situations. In
other words, martial rule exists when the military rises superior to the civil power in the exercise of
some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest.
Except for the imposition of curfew hours and other restrictions required for the security of the State,
the people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally
associated with a regime of Martial law in other countries. "Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at
long last been emancipated a consummation devoutly wished by every Philippine President since
the 1930's. The laborer now holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in
unprecedented numbers and amount, lent their labors in massive cooperation in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at
long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines"
reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-
footed in using the power of presidential decree under martial law for this purpose. He has zeroed in
on areas which have been widely recognized as prime sources of the nation's difficulties land
tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New
York Times:
During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the
failure of legislators to approve urgently needed reforms. He found his second term
further frustrated by spread riots, a Maoist uprising in Luzon and a much more
serious Moslem insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war
is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as
to when he will relinquish them. But, while fettering a free press, terminating
Congress and locking up some opponents (many of whom were later amnestied), he
has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are
redistributed with state funds. New roads have been started. The educational system
is undergoing revision, a corruption is diminished. In non-communist Asia it is
virtually impossible to wholly end it and this disagreeable phenomenon still reaches
very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an
agrarian middle-class to replace the archaic sharecropper-absentee landlord
relationship. He is even pushing for a birth control program with the tacit acceptance
of the Catholic Church. He has started labor reforms and increased wages. (Daily
Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of
counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and
large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new
Constitution has become effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic norm, but by
presupposing the new one. The statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that in the
final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character of this Government which
now functions under the new Charter. It seeks to nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially decided.
"Judicial power presupposes an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government under which it is
exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller
Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted."
5
Such change in the organic law relates to the existence of a prior point in the Court's
"chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of
powers."
6
It involves in essence a matter which "the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra governmental action."
7

The non-judicial character of such a question has been recognized in American law. "From its
earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating
dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To classify the various
instances as "political questions" is rather a form of stating this conclusion than revealing of analysis
... The crux of the matter is that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For
there is scarcely any principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith in the nation's leadership and in the maturity of
judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the
conclusion of this Court in its judgment of March question becomes wholly moot
except for this consideration, that, when the judges as individuals or as a body of
individuals come to decide which king or which constitution they will support and
assert to represent, it may often be good judgment for them to follow the lead of the
men who as a practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more directly in touch
with popular sentiment. If, however, the judges hold too strong views of their own to
be able to take this course, they may follow their own leads at their own hazard. No
question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25],
pp. 305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each
house of the legislature. The secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective
thirty days after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been
held, the secretary of state shall place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on the question are in the
negative, the question need not be placed on the ballot until the end of the next ten-year period. If a
majority of the votes cast on the question are in the affirmative, delegates to the convention shall be
chosen at the next regular statewide election, unless the legislature provides for the election of the
election delegates at a special election. The secretary of state shall issue the call for the convention.
Unless other provisions have been made by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification
of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the
constitution, subject only to ratification by the people. No call for a constitutional convention shall
limit these powers of the convention.
2. California (1879) Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be
proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed expedient. Should more amendments than one be
submitted at the same election they shall be so prepared and distinguished, by numbers or
otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of
the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention shall vote in favor thereof,
the Legislature shall, at its next session, provide by law for calling the same. The Convention shall
consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be
chosen in the same manner, and have the same qualifications, as Members of the Legislature. The
delegates so elected shall meet within three months after their election at such place as the
Legislature may direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in
such manner as the Convention may determine. The returns of such election shall, in such manner
as the Convention shall direct, be certified to the Executive of the State, who shall call to his
assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as
may have been ratified by a majority of all the votes cast at such special election, to be the
Constitution of the State of California.
3. Colorado (1876) Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of
two-thirds of the members elected to each house, recommend to the electors of the state, to vote at
the next general election for or against a convention to revise, alter and amend this constitution; and
if a majority of those voting on the question shall declare in favor of such convention, the general
assembly shall, at the next session, provide for the calling thereof. The number of members of the
convention shall be twice that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. The general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide
for the payment of the same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the United States, and of
the state of Colorado, and to faithfully discharge their duties as members of the convention. The
qualifications of members shall be the same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and prepare suchrevisions,
alterations or amendments to the constitution as may be deemed necessary; which shall be
submitted to the electors for their ratification or rejection at an election appointed by the convention
for that purpose, not less than two nor more than six months after adjournment thereof; and unless
so submitted and approved by a majority of the electors voting at the election, no such revision,
alteration or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this
constitution may be proposed in either house of the general assembly, and if the same shall be
voted for by two-thirds of all the members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall be entered in full on their
respective journals; the proposed amendment or amendments shall be published with the laws of
that session of the general assembly, and the secretary of state shall also cause the said
amendment or amendments to be published in full in not more than one newspaper of general
circulation in each county, for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said amendment or amendments shall be
submitted to the qualifiedelectors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the same session.
4. Delaware (1897) Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or House of Representatives; and if
the same shall be agreed to by two-thirds of all the members elected to each House, such proposed
amendment or amendments shall be entered on their journals, with the yeas and nays taken
thereon, and the Secretary of State shall cause such proposed amendment or amendments to be
published three months before the next general election in at least three newspapers in each County
in which such newspaper shall be published; and if in the General Assembly next after the said
election such proposed amendment or amendments shall upon yea and nay vote be agreed to by
two-thirds of all the members elected to each House, the same shall thereupon become part of the
Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and
duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention to revise the Constitution
and amend the same?;" and upon such submission, if a majority of those voting on said question
shall decide in favor of a Convention for such purpose, the General Assembly at its next session
shall provide for the election of delegates to such convention at the next general election. Such
Convention shall be composed of forty-one delegates, one of whom shall be chosen from each
Representative District by the qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by the qualified electors thereof
respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday
in September next after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for
the transaction of business. The Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and fix their compensation, and provide for
the printing of its documents, journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns and qualifications of its
members. Whenever there shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such
vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of
such district or county.
5. Florida (1887) Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or
at any special or extra-ordinary session thereof called for such purpose either in the governor's
original call or any amendment thereof, may propose the revision or amendment of any portion or
portions of this Constitution. Any such revision or amendment may relate to one subject or any
number of subjects, but no amendment shall consist of more than one revised article of the
Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the members elected to each
house, it shall be entered upon their respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks, immediately preceding the
election at which the same is to be voted upon, and thereupon submitted to the electors of the State
for approval or rejection at the next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in a special election under
the conditions described in and in the manner provided by Section 3 of Article XVII of the
Constitution. If a majority of the electors voting upon the amendment adopt such amendment the
same shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the
members of both Houses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice
of said action shall be published weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of Representatives, and in those
countries where no newspaper is published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election. The electors at said election
may vote for or against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to revise the
Constitution, said Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House of Representatives, and
shall be apportioned among the several counties in the same manner as members of said House.
6. Idaho (1890) Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution
may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds
of all the members of each of the two houses, voting separately, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay for at least six consecutive
weeks, prior to said election, in not less than one newspaper of the general circulation published in
each county; and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to
each branch of the legislature shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall at the next session provide by law for calling the same; and such
convention shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.
7. Iowa (1857) Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by
law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for members of the General Assembly; and
in case a majority of the electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next
session, shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any
amendment or amendments to this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals, respectively, with the yeas and
nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn
election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and approve such amendment or amendments,
the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the
year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the
question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote
for members of the Legislature. In case a majority of the Electors voting on the question shall decide
in favor of a Convention for such purpose, at an Election to be held not later than four months after
the Proposal shall have been certified as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each Electors of each Senatorial District as
then organized shall Elect One Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the business of the convention shall
be completed. A majority of the delegates elected shall constitute a quorum for the transaction of
business. ... Noproposed constitution or amendment adopted by such convention shall be submitted
to the electors for approval as hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be submitted to the qualified
electors in the manner provided by such convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at least 90 days shall not intervene
between such final adjournment and the date of such election. Upon the approval of such
constitution or amendments by a majority of the qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid.
Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same session, and said
amendments shall be submitted to the people for their approval or rejection at any general election,
and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or amendments, the same shall be
valid to all intents and purposes as a part of this Constitution. If two or more alterations
or amendments shall be submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for members of the legislature, for or
against a convention; and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their next session, provide by law for calling the same. The
convention shall consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their election for the purpose
aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the State
of Minnesota for their approval or rejection at the next general election held not less than 90 days
after the adoption of such revision, and, if it shall appear in the manner provided by law that three-
fifths of all the electors voting on the question shall have voted for and ratified such revision, the
same shall constitute a new constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall
not apply to election to the convention.
10. Nevada (1864) Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution
may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all
the members elected to each of the two houses, such proposed amendment or amendments shall
be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three months next preceding the time
of making such choice. And if in the Legislature next chosen as aforesaid, such proposed
amendment or amendments shall be agreed to by a majority of all the members elected to each
house, then it shall be the duty of the Legislature to submit such proposed amendment or
amendments to the people, in such manner and at such time as the Legislature shall prescribe; and
if the people shall approve and ratify such amendment or amendments by a majority of the electors
qualified to vote for members of the Legislature voting thereon, such amendment or amendments
shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of
two-thirds of the Members elected to each house, shall determine that it is necessary to cause a
revision of this entire Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority
of the electors voting at such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of a number of Members
not less that of both branches of the legislature. In determining what is a majority of the electors
voting such election, reference shall be had to the highest number of vote cast at such election for
the candidates of any office or on any question.
11. New Hamspire (1784)
Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of
the several towns and places in this state, in warning the first annual meetings for the choice of
senators, after the expiration of seven years from the adoption of this constitution, as amended, to
insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the
sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being
warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters
present as to the necessity of a revision; and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the sense of the people of the
state has taken, and that, in the opinion of the majority of the qualified voters in the state, present
and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty
of the general court to call a convention for that purpose, otherwise the general court shall direct the
sense of the people to be taken, and then proceed in the manner before mentioned. The delegates
to be chosen in the same manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the same shall be laid before
the towns and unincorporated places, and approved by two thirds of the qualified voters present and
voting on the subject.
12. Oklahoma (1907) Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed in either branch of the
Legislature, and if the same shall be agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be
entered in their journals and referred by the Secretary of State to the people for their approval or
rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby become a part of this
Constitution.
If two or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters
shall embrace more than one general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general subject, each proposed
article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall
be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such convention shall first be approved
by the people on a referendum vote at a regular or special election, and any amendments,
alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in every twenty years.
13. Oregon (1859) Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may
be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the
secretary of state to the people for their approval or rejection, at the next regular election, except
when the legislative assembly shall order a special election for that purpose. If a majority of the
electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of
this Constitution. The votes for and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of
state in the presence of the governor, and if it shall appear to the governor that the majority of the
votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof,
it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment,
or amendments, severally, having received said majority of votes to have been adopted by the
people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more amendments shall be submitted
in the manner aforesaid to the voters of this state at the same election, they shall be so submitted
that each amendment shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new Constitution, unless the law providing
for such convention shall first be approved by the people on a referendum vote at a regular general
election. This article shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution
granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the Legislative Assembly and, if the proposed
revision is agreed to by at least two-thirds of all the members of each house, the proposed revision
shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when the Legislative Assembly
orders a special election for that purpose. A proposed revision may deal with more than one subject
and shall be voted upon as one question. The votes for and against the proposed revision shall be
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the
Governor that the majority of the votes cast in the election on the proposed revision are in favor of
the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that
the proposed revision has received a majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the
Constitution or as a part of this Constitution from the date of such proclamation.
14. Utah (1896) Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may
be proposed in either house of the Legislature, and if two-thirds of all the members elected of the
two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause
the same to be published in at least one newspaper in every county of the State, where a newspaper
is published, for two months immediately preceding the next general election, at which time the said
amendment or amendments shall be submitted to the electors of the State, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same, such amendment
or amendments shall become part of this Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to
each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention.
The Legislature, at its next session, shall provide by law for calling the same. The convention shall
consist of not less than the number of members in both branches of the Legislature.
15. Wyoming (1890) Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all
the members of the two houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors of the state at the next general
election, in at least one newspaper of general circulation, published in each county, and if a majority
of the electors shall ratify the same, such amendment or amendments shall become a part of this
constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such
manner that the electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to
each branch of the legislature shall deem it necessary to call a convention to revise or amend this
constitution, they shall recommend to the electors to vote at the next general election for or against a
convention, and if a majority of all the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide by a law for calling the same; and such
convention shall consist of a number of members, not less than double that of the most numerous
branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it
has been submitted to and adopted by the people.


Separate Opinions
MAKALINTAL, J ., concurring:
CASTRO, J ., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a
sufficient prima faciecase in their petitions to justify their being given due course. Considering on the
one hand the urgency of the matter and on the other hand its transcendental importance, which
suggested the need for hearing the side of the respondents before that preliminary question was
resolved, We required them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally argued. As it turned out,
the hearing lasted five days, morning and afternoon, and could not have been more exhaustive if the
petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed
by the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let
alone a valid one, of the proposed Constitution, because it was not in accordance with the existing
Constitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely subordinate and
peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by
Congress in joint session or by a Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election at which the amendments
submitted to the people for their ratification." At the time Constitution was approved by the
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14,
the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague
and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters submitted to the pursuant to
law, for approval. It was in this sense that word was used by the framers in Article XV (also in
Articles VI and VII), and in accordance with such procedure that plebiscites were held to ratify the
very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the Commission of Elections);
1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and
eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their
offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio
officials andplebiscites shall be conducted in the manner provided by this Code." This is a statutory
requirement designed, as were the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the
term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the
qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of
age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election
Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of
registration and the custody thereof, the description and printing of official ballots, the actual casting
of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of
ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional
circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered
part of the Constitution when approved by a majority of the votes cast in an
election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen hundred and thirty-five and all
amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future
amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional Convention on November 30,
1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that
a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such
appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to
said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held
on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for
ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such as: (a) publication of the
proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and designation of watchers in
each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy
thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory
powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view from the framers of the 1935 Constitution
through all the Congresses since then to the 1971 Constitutional Convention amendments to the
Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters. Indeed, so concerned was
this Court with the importance and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-
34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention
submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen
years and was approved by the Convention for submission to a plebiscite ahead of and separately
from other amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later. This
Court held that such separate submission was violative of Article XV, Section 1, of the Constitution,
which contemplated that "all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a
proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as
in Tolentino vs. COMELEC, but the ratification of an entire charter setting up a new form of
government; and the issue has arisen not because of a disputed construction of one word or one
provision in the 1935 Constitution but because no election or plebiscite in accordance with that
Constitution and with the Election Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by
Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in
the democratic process and to afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened
for a referendum between January 10 and 15, to "consider vital national issues now confronting the
country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the
Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the
new Constitution to be held?" It should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite which he had called for January 15,
1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
two new dates for the purpose February 19 or March 5; that he had ordered that the registration
of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of
the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24,
1972.)
On January 10, 1973 it was reported that one more question would be added to the original four
which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was
reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be
noted, was that the Assemblies should express their views as to the plebiscite should be held, not as
to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the
provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it
is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want
him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion
was broached, for the first time, that the plebiscite should be done away with and a favorable vote by
the Assemblies deemed equivalent ratification. This was done, not in the questionnaire itself, but in
the suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an
unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted
in the Citizen Assemblies, assuming that such voting was held, was not within the intendment of
Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said
Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by
Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision
of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered
voters, but included all citizens from the age of fifteen, and regardless of whether or not they were
illiterates, feeble-minded, or ex convicts * these being the classes of persons expressly disqualified from voting by Section
102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of
the essential features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and
reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of
all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid
exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
but that the same must be duly ascertained in accordance with the procedure prescribed by law. In
other words the very existence of such majority or plurality depends upon the manner of its
ascertainment, and to conclude that it exists even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as
it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that
was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as
certified by the President in Proclamation No. 1102, was not in accordance with the constitutional
and statutory procedure laid down for the purpose does not quite resolve the questions raised in
these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably declare that the Constitution has not
become effective, and for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases, to resolve which considerations other than judicial, and therefore
beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on the
invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would
have this Court grant the reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government, challenge the jurisdiction of
this Court on the ground that the questions raised in the petitions are political and therefore non-
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition of the power of judicial
review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their counsel,
Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not
concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by the people
was made under a revolutionary government, in the course of a successful political revolution, which
was converted by act of the people to the present de juregovernment under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on
the assumption, conceded by all, that the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court was simply to determine
whether or not the particular act or statute that was being challenged contravened some rule or
mandate of that Constitution. The process employed was one of interpretation and synthesis. In the
cases at bar there is no such assumption: the Constitution (1935) has been derogated and its
continued existence as well as the validity of the act of derogation is issue. The legal problem posed
by the situation is aggravated by the fact that the political arms of the Government the Executive
Departments and the two Houses of Congress have accepted the new Constitution as effective:
the former by organizing themselves and discharging their functions under it, and the latter by not
convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and
in the case of a majority of the members by expressing their option to serve in the Interim National
Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be
taken up and restated at same length if only because it would constitute, if sustained, the most
convenient ground for the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972
(Proclamation No. 1081) he established a revolutionary government when he issued General Order
No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of
the entire government, including all its agencies and instrumentalities, in my capacity, and shall
exercise all the powers and prerogatives appurtenant and incident to my position as such
Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the
Commander-in-Chief of the Armed Forces assumed all the powers of government executive,
legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and
Decrees which amounted to legislative enactments not justified under martial law and, in some
instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain
classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation
No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly
designated representative pursuant thereto." (General Order No. 3 as amended by General Order
No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was
the culminating act of the revolution, which thereupon converted the government into a de jure one
under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what
the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing government and set up a
new government in its place, there could not be the least doubt that their act would be political and
not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; judicial dictum can prevail against it. We do
not see that situation would be any different, as far as the doctrine of judicial review is concerned, if
no force had been resorted to and the people, in defiance of the existing Constitution but peacefully
because of the absence of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can be no adequate judicial
relief; and so courts forbear to take cognizance of the question but leave it to be decided through
political means.
The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a
case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator
Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry
belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State
court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had
been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision
upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under
which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able
to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases
at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution. However, we are not prepared to
agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant
circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential
Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford
ample opportunities for the citizenry to express their views on important national issues." (2) The
President announced, according to the Daily Express of January 2, 1973, that "the referendum will
be in the nature of a loose consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos,
in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum
results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by the Filipino people."
(5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were submitted to them. In fact the
plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
indefinite date, the reasons for the postponement being, as attributed to the President in the
newspapers, that "there was little time to campaign for or against ratification" (Daily Express, Dec.
22, 1972); that he would base his decision (as to the date, of the plebiscite) on the compliance by
the Commission (on Elections) on the publication requirement of the new Charter and on the position
taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could
not have understood the referendum to be for the ratification of the Constitution, but only for the
expression of their views on a consultative basis. Indeed, if the expression of those views had been
intended as an act of ratification (or of rejection as a logical corollary) there would have been no
need for the Katipunan ng mga Barangay to recommend that the Constitution should already be
deemed ratified, for recommendation imports recognition of some higher authority in whom the final
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had
been ratified and had come into effect. The more relevant consideration, therefore, as far as we can
see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views was
an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether
or not the regime established by President Marcos since he declared martial law and under which
the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of theKatipunan ng mga Barangay, was intended
to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. We must confess that after considering
all the available evidence and all the relevant circumstances we have found no reasonably reliable
answer to the question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future,
our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no
man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7,
1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said
the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on
justiciable matters, on matters that may come before the experts and interpreters of
the law. But we cannot disqualify the people from speaking on what we and the
people consider purely political matters especially those that affect the fundamental
law of the land.
... The political questions that were presented to the people are exactly those that
refer to the form of government which the people want ... The implications of
disregarding the people's will are too awesome to be even considered. For if any
power in government should even dare to disregard the people's will there would be
valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer
tolerate any attempt to undermine the stability of their Republic; they will rise up in
arms not in revolt against the Republic but in protection of the Republic which they
have installed. It is quite clear when the people say, we ratify the Constitution, that
they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before,
from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary
concessions to traditional democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and overcome the extraordinary
challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to "the demand of some of our citizens ... that when all other measures should fail, that the
President be directed to organize and establish a Revolutionary Government," but in the next breath
added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They
cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted
this recommendation merely sought articulate their impatience with the status quo that has brought
about anarchy, confusion and misery to the masses ..." The only alternatives which the President
clearly implied by the foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out,
namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather than return to
such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a
revolutionary government, because that would be the only other way to carry out the reforms he had
envisioned and initiated reforms which, in all fairness and honesty, must be given credit for the
improved quality of life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution was
meant to be irreversible, and that nothing anyone could say would make the least difference. And if
this is a correct and accurate assessment of the situation, then we would say that since it has been
brought about by political action and is now maintained by the government that is in undisputed
authority and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has
professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and
social change ... but that in a democratic society, revolution is of necessity,
constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President
by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions. The Government
of the Republic of the Philippines which was established by our people in 1946
continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the Constitution to save
the Republic and reform our society...
I have had to use this constitutional power in order that we may not completely lose
the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger
powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the
issue of January 29, 1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't you be
in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am
doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through
is sufficient cause to proclaim martial law but at the very least there is
a danger of rebellion because so many of our soldiers have been
killed. You must remember this (martial law provision) was lifted from
the American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is
in no position to pass judgment. Among them is the President's own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with
the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to
be. The President should now perhaps decide, if he has not already decided, whether adherence to
such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now
and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the
people, such issue being related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under
a regime of martial law, with the free expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these
cases is concerned. To interpret the Constitution that is judicial. That the Constitution should be
deemed in effect because of popular acquiescence that is political, and therefore beyond the
domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J ., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the
Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in the so called
Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of
some of the grounds previously alleged and in the course of the unprecedented five-day hearing that
was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us,
but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of
counsels, nothing more cogent and compelling than what had already been previously presented by
Counsel Taada is before Us now. Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
petitions were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that I reserved
before the filing of a more extended opinion, I will take this opportunity to explain further why I hold
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January
10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more
importantly as a political act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of
the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be
deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the
1935 Constitution. If indeed this explanation may be considered as a modification of my
rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon,
paramount considerations of national import have led me to the conviction that the best interests of
all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
in force, not necessarily as a consequence of the revolutionary concept previously suggested by me,
but upon the ground that as a political, more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the substantiality of Article XV of the 1935
Constitution.
I
The facts that gave rise to these proceedings are historical and well known. Generally, they may be
taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973
declared in Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March
16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of
1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10,
1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1,
1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and
committees and an incomprehensible fear of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had
finished deliberations and second-reading voting only on an insignificant number of proposals
until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the
Convention recessed until after the lifting of martial law, and not long after the motion of Delegate
Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if
unmindful of the arrest and continued detention of several of its members, the convention gathered
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft
of a complete constitution, instead of mere specific amendments of particular portions of the
Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited
coverage of the workings in the convention by the mass media. At the same time, public debates
and discussions on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President
Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new
Constitution on appropriate date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73
submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973.
This order contained provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and
enjoining the authorities to allow and encourage public and free discussions on proposed
constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered
the suspension the effects of martial law and lifted the suspension of privilege of the writ of habeas
corpus insofar as activities connected with the ratification of the draft constitution were concerned.
These two orders were not, however, to last very long. On January 7, 1973, the President, invoking
information related to him that the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat the purposes for which they
were issued and to foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86
creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their
views on important national issues" and one of the questions presented to said assemblies was: "Do
you like the plebiscite on the proposed Constitution to be held later" So, the same order of January
7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held
January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered
from barangays (citizens assemblies) that have so far been established, the people
would like to decide for themselves questions or issues, both local and national,
affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the
vehicle for expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal
status and due recognition as constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a
referendum on certain specified questions such as the ratification of the new
Constitution, continuance of martial law, the convening of Congress on January 22,
1973, and the elections in November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution as Commander-in-Chief of all
Armed Forces of the Philippines, do hereby declare as part of the law of the land the
following:
1. The present barangays (citizens assemblies) are created under Presidential
Decree No. 86 dated December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their collective views shall be considered in
the formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973, and others in the future, which shall serve as
guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the Department of Local
Governments Community Development immediately thereafter, pursuant to express
will of the people as reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen
hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office
of the President to submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of
the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe
that the submission of the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political, economic and social
fields, and that it is now necessary to bring this down to the level of the people
themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated
January 5, 1973 and that the initial referendum shall include the matter of ratification
of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the
referendum which was held from said date to January 15, 1973, the following questions were
submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the
said questions more or less suggestive of the answer desired. It may assumed that the said
"comments" came from official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is
to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the
new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise, that the results of the
referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of
Local Governments. The transmission of the results was made by telegram,
telephone, the provincial government SSB System in each province connecting all
towns; the SSB communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results were
then flown to Manila to confirm the previous figures received by the aforementioned
means of transmission. The certificates of results tallied with the previous figures
taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the
Citizens Assemblies operation at the Department wherein the identity of the barrio
and the province was immediately given to a staff in charge of each region. Every
afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures were tabulated
at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were
then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17,
1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you
still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95)
percent of the members of the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelmingly majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of
December 1972.
1
Their common target then was Presidential Decree No. 73, but before the said cases
could be decided, the series of moves tending in effect to make them moot and academic insofar as they
referred exclusively to the said Presidential Decree began to take shape upon the issuance of
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above
quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were
known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being
adopted to secure approval by the people of the new Constitution, hence Counsel Taada, not being
satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12,
1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of
the proceedings going on. Principal objective was to prevent that the President be furnished the report of
the results of the referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done the issuance of some kind of proclamation, order or decree,
declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same
day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and
to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened
that morning form part of the recital of facts the decision rendered by this Court in the ten cases on
January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Taada was still insisting on his prayer for preliminary injunction or restraining
order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and
persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the
mind of the majority of the members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the answer thereto filed by respondents,
the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices
Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Taada's pleading and argument
had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according
them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential
by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel
Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President
and President Pro Tempore of the Senate, to the effect that change in the composition of the
Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the
date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond
our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement
2
or law, the
Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as
the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as
the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in
effect, it would be choosing between two constitutions, which is a political determination not within the
Court's competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly
that the issue should not be ignored or dodged, if only to make the world know that the Supreme
Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it
would be to admit that this Supreme Court does not know, to use a common apt expression, whether
it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will
inevitably examine minutely how each of us voted and upon what considerations we have
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation
1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
six of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to
efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood
that by the vote of justices in favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am
averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should
knowingly countenance is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute
we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other
considerations inherent to our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a case without knowing the
basis of its author to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting in
these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant constitutional mandate, the
same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new Constitution is in force and that We
are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two constitutions. The truth of
matter is simply that in the normal and logical conduct governmental activities, it is neither practical
nor wise to defer the course of any action until after the courts have ascertained their legality, not
only because if that were to be the rule, the functioning of government would correspondingly be
undesirably hesitative and cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as otherwise, the smooth running
of the government would have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary
to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world
that has recognized judicial supremacy as its basic governmental principle, no matter how desirable
we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that
this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees
of the most legislative character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry are pouring out from
Malacaang under the authority of said Constitution. On the other hand, taxes are being exacted
and penalties in connection therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in big numbers are going on in
obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in
the midst of these developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated consequences such a position entails
in the internal workings within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of the land in making their
orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is
not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the
Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for
the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that,
official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has
been transferred from the Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that direction. That, on the other hand, the
President has not augmented the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the presence of ten justices who are the
Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added
would only be committed to upholding the same, since they cannot by any standard be expected to
vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We
are dealing here with a whole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is
the same 1935 Constitution, with a few improvements. A cursory perusal of the former should
convince anyone that it is in essence a new one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the
statement of general principles, the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the national economy as well as
the patrimony of the nation, not to mention the distinctive features of the general provisions. What is
more, the transitory provisions notably depart from traditional and orthodox views in that, in general,
the powers of government during the interim period are more or less concentrated in the President,
to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and
acts previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by President
Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new constitution unlike any other
constitution countenances the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede
the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory
provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure
of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein
correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-
man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid,
then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court
and it happens that Our collective decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself as included automatically in the 15-man-
Court, since that would tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an election"
in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that
the word "election" in the said Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum was a farce and its
results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to
have submitted the final report to the President, which served as basis for Proclamation 1102, had
no official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the
short period of time employed. Of course, they also contend that in any event, there was no proper
submission because martial law per se creates constructive duress which deprives the voters of the
complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the
matter raised in the petitions is a political one which the courts are not supposed to inquire into, and,
anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the
Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity
in the voting as well as in the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held
that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself
clearer on some relevant points, I would like to add a few considerations to what I have already said
in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the
Presidential certification through Proclamation 1102 itself that the New Constitution has been
approved by a majority of the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the referendum was as the President
had stated. I can believe that the figures referred to in the proclamation may not accurate, but I
cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw
with own eyes that people did actually gather and listen discussions, if brief and inadequate for those
who are abreast of current events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were
actually no meetings held and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the declaration that there was voting
and that the majority of the votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens
Assemblies was to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are
to be believed, and I say this only because petitioners would consider the newspapers as the official
gazettes of the administration, the last set of six questions were included precisely because the
reaction to the idea of mere consultation was that the people wanted greater direct participation, thru
the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically the two questions emphasized by counsel,
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to
ratify the new Constitution? should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if
the majority had expressed disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have been thought that if the
holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the
non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause,
of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly
suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of
the point that as so framed, the thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded categorically thus Do you
approve the New Constitution? The contention would have been weighty were it not unrealistic. I
remember distinctly that the observation regarding the construction of the subject question was not
originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of envy of even professors
of English. None of the other members of the Court, as far as I can recall, ever noticed how the said
question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a factual answer
instead of a mere opinion, how could anyone expect the millions of unlettered members of the
Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself
did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in
the light of the accompanying "comment" corresponding to it in particular, I am certain that any one
who answered the same understood it in no other sense than a direct inquiry as to whether or not,
as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that according to the
reported result of the referendum said answer was even coupled with the request that the President
defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the
convening of the interim assembly, the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not
want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different and more meaningful
aspect, namely, the formation of a new society. From the point of view of the President and on the
basis of intelligence reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as
in the case of rebellious movement that threatened the Quirino Administration, the remedy was far
from using bullets alone. If a constitution was to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than
hastened the progress of the people. Stated otherwise, in the context of actualities, the evident
objective in having a new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these considerations in mind
can the "comments" already referred to be properly appreciated. To others said "comments" may
appear as evidence of corruption of the will of those who attended the assemblies, but actually, they
may also be viewed in the same light as the sample ballots commonly resorted to in the elections of
officials, which no one can contend are per semeans of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical,
considering the need for faster decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific proposed amendments, the former
calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment. Accordingly, there was
need to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the existence
of said "comments" should make any appreciable difference in the court's appraisal of the result of
the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from
the value that the referendum would otherwise have had. As I intimated, however, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
law per se. For one thing, many of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed wishes of the President that
the same be made "Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information
which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is
simply that a man may freely and correctly vote even if the needed information he possesses as to
the candidates or issues being voted upon is more or less incomplete, but when he is subject to
arrest and detention without investigation and without being informed of the cause thereof, that is
something else which may actually cause him to cast a captive vote. Thus it is the suspension of the
writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom
choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has
never produced any chilling effect upon the voters, since it is known by all that only those who run
afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and
1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the
referendum may considered as sufficient basis for declaring that the New Constitution has been
ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum which could have in one way or another affected the exercise of the freedom of choice
and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the
same conditions may be relevant in my subsequent discussions of the acceptance by the people of
the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether
or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold
that the propriety of submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this
effect. In view, however, of the factual background of the cases at bar which include ratification itself,
it is necessary for me to point out that when it comes to ratification, I am persuaded that there should
be a boundary beyond which the competence of the courts no longer has any reason for being,
because the other side is exclusively political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess
votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the
outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by referring to the results announced in
the proclamation itself. Giving substantial allowances for possible error and downright manipulation,
it must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure
adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative
but to rely on what has been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing of the acceptance in
question by this time, there would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord
to the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41
SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the
Constitution of 1935, to be valid, must appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that decision asserted judicial competence to
inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the
correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said
constitutional provision. Without trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the cases now at bar, which are
entirely different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular
provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted this point when I made
reference in the resolution denying the motion for reconsideration to the fact that Article XV must be
followed "as long as any amendment is formulated and submitted under the aegis of the present
Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such an eventuality, the new Constitution
would subject its going into effect to any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
of the referendum and provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take
into consideration the forces and the circumstances dictating the replacement. From the very nature
of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression
of a people's resolute determination to bring about a massive change of the existing order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any question arise as to its effectivity and there is
some reasonable indication that the new charter has already received in one way or another the
sanction of the people, I would hold that the better rule is for the courts to defer to the people's
judgment, so long as they are convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances,
the courts should not bother about inquiring into compliance with technical requisites, and as a
matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed to do under the
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being
composed of experienced, knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire
the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As
counsel Tolentino has informed the court, there was noting to stop the senators and the
congressmen to meet in any other convenient place and somehow officially organize themselves in
a way that can logically be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to
form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present prayers for mandamus have
no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the
new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the
government under the 1935 Constitution, two, the Executive and the Legislative, have already
accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how
this Supreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial power prevail against the decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture
that concerns me. More than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the
Constitution. If as the representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if
there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty
vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time, towards their accomplishment,
cannot but feel apprehensive that instead of serving the best interests of our people, which to me is
in reality the real meaning of our oath of office, the Court might be standing in the way of the very
thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal
erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all
relevant circumstances, principally the political, or, in brief, a decision more political than legal, which
a court can render only by deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot
agree with the Solicitor General that in the legal sense, there has been at least substantial
compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense,
the answers to the referendum questions were not given by the people as legal conclusions. I take it
that when they answered that by their signified approval of the New Constitution, they do not
consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that what was being done was in conformity with prevailing
constitutional standards. We are not to assume that the sovereign people were indulging in a futile
exercise of their supreme political right to choose the fundamental charter by which their lives, their
liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that context. It
is my considered opinion that viewed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article
XV of the 1935 Charter, specially when it is considered that the most important element of the
ratification therein contemplated is not in the word "election", which conceivably can be in many
feasible and manageable forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal
grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel
Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases that is, as an extra constitutional exercise by the people, under the leadership of
President Marcos, of their inalienable right to change their fundamental charter by any means they
may deem appropriate, the moment they are convinced that the existing one is no longer responsive
to their fundamental, political and social needs nor conducive to the timely attainment of their
national destiny. This is not only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of
the preceding constitution. Those who may feel restrained to consider this view out of respect to the
import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be deemed as
the be all and end all the nation. More important than even the Constitution itself with all its excellent
features, are the people living under it their happiness, their posterity and their national destiny.
There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the
totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have hitherto observed are
mere integral parts of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider,
however, that the President, the Vice President, the members of both Houses of Congress, not to
speak of all executive departments and bureaus under them as well as all the lower courts, including
the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true
to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because we feel that by
the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I
cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-
given attribute of the people to disengage themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be the better road to the promotion and
protection of their welfare. And once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels
Taada and Salonga that these cases be decided on the basis of conscience. That is exactly what I
am doing. But if counsel mean that only by granting their petitions can this Court be worthily the
bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are
all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively
at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio
Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmea, Roxas,
Laurel and Recto, to mention only some of them, had their differences of views and they did not
hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them
are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that
the controversies the events leading to these cases have entail will heal after the decision herein is
promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition
without costs.
MAKASIAR, J ., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new Constitution and that such procedure was no
complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue;
for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of
ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the
legitimacy of the government organized and operating thereunder. And being political, it is beyond
the ambit of judicial inquiry, tested by the definition of a political question enunciated inTaada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or
whose jurisdiction has been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and performing the obligations
defined by the new Constitution, and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social, economic and political system as
re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs.
Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court,
defined a political question as one which, under the Constitution, is "to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Taada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a constitutional convention; while the
power to ratify or reject such proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the
1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164.
Regardless of the modality of submission or ratification or adoption even if it deviates from or
violates the procedure delineated therefore by the old Constitution once the new Constitution is
ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly
authorized therefor but is subsequently adopted or recognized by the people and by the other official
organs and functionaries of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1
of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty
resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities therein
which are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas
State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital
elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285
NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307
U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the effect of both
previous rejection and attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... . This decision by the political
departments of the Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of the efficacy of
ratifications by state legislatures, in the light of previous rejection or attempted
withdrawal, should be regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the exercise of its control
over the promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr.
Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control submission of
constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place "is conclusive upon the courts." In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the Constitution, calls for
decisions by a "political department" of questions of a type which this Court has
frequently designated "political." And decision of a "political question" by the "political
department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of...government."
Proclamation under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has taken place as
the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and ratification of amendments,
we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p.
44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
great reliance that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by the
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid
cases refers to only the propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the sovereign people. As
heretofore stated, it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the government operating
thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress. It is part of the
inherent powers of the people as the repository of sovereignty in a republican
state, such as ours to make, and hence, to amend their own Fundamental Law.
Congress may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same
function, for their authority does not emanate from the Constitution they are the
very source of all powers of government, including the Constitution itself. (21 SCRA
787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1)
that both the proposal to amend and the ratification of such a constitutional amendment are political
in nature forming as they do the essential parts of one political scheme the amending process.
WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has
been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution which was being submitted to the people for ratification
satisfied the three fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs. Commission on
Elections. In the first, we held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber
purporting to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative
districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory advanced in these four (4) cases, that
the issues therein raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a
constituent assembly violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to the extent that this view may
be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from the
jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal with propriety or
wisdom or absence of either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of
power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department
of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their
Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of
the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix
I, Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the
union shall be perpetual; . (See the Federalist, Appendix II, Modern Library Ed.,
1937, p. 584; emphasis supplied.)
nor shall any alterations at any time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united states, and be afterwards confirmed by
the legislatures of every state
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the tender
mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that
ratification then would have had the same chance as the scriptural camel passing through
the eye of a needle. ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward
Earle Mead, pp. viii-ix; emphasis supplied)
It was therefore determined to recommend to Congress that the new Constitution be submitted to
conventions in the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the thirteen states
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be Antifederalist,
provided for ratification of the Constitution by popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution
would go into effect as soon as nine states ratified. The convention method had the further
advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved, formally
submitted the new constitution to the states and politely faded out before the first presidential
inauguration. (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequotedand in spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely, .
the absence of a bill of Rights and of a provision affirming the power of judicial review
The liberties of the American people were guaranteed by subsequent amendments to the Federal
Constitution. The doctrine of judicial review has become part of American constitutional law only by
virtue of a judicial pronouncement by Chief Justice Marshall in the case of (1803, 1 Cranch 137).
Marbury vs. Madison
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a
new or revised Constitution does not depend on the method of its submission or ratification by the
people, but , the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
Wheeler vs. Board of Trusteeson the fact or fiat or approval or adoption or acquiescence by the people
which fact of ratification or adoption or acquiescence is all that is essential
No case identical in its facts with the case now under consideration has been called to our attention,
and we have found none. .
We think that the principle which we apply in the instant case was very clearly applied in the creation of
the constitution of the United States. The convention created by a resolution of Congress had authority to
do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted
to the sovereign power, the people, a new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic law of this nation when it had been
properly adopted by the people
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of
the United States, has this to say: ". It was objected by some members, that they had no power, no
authority, to construct a new government. They had no authority, if their decisions were to be final;
and no authority whatsoever, under the articles of confederation, to adopt the course they did. But
they knew that their labors were only to be suggestions; and that they as well as any private
individuals, and any private individuals as well as they, had a right to propose a plan of government
to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their
work had no more binding sanction than a constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will, transformed this suggestion, this proposal, into an
organic law, and the people might have done the same with a constitution submitted to them by a
single citizen."
The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution
of Congress that called them together. That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the State
legislatures, in the manner pointed out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated
to be reached such tentative means. They saw that the system they were called to improve must be
totally abandoned, and that the national idea must be re-established at the center of their political society
xxx xxx xxx
... .
When the people adopt a completely revised or new constitution, the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the
people, can breathe life into a constitution
xxx xxx xxx
... . In , 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an
original constitution, or abrogate an old one and form a new one, at any time, without any political
restriction except the constitution of the United States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
We do not hesitate to say that a court is never justified in placing by implication a limitation upon the
sovereign. This would be an authorized exercise of sovereign power by the courtState v. Swift
In the 1903 case of , the Court held:
Weston vs. Ryan
It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold
that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part of our state Constitution. In the recent case of (Va.)
44 S.E. 754, . In , 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska
Constitution of 1886, which were added by the Legislature at the requirement of Congress, though
never submitted to the people for their approval." (97 NW 349-350; emphasis supplied).
Taylor vs. Commonwealththe Supreme Court of Virginia hold that their state Constitution of 1902, having
been acknowledged and accepted by the officers administering the state government, and by the people,
and being in force without opposition, must be regarded as an existing Constitution irrespective of the
question as to whether or not the convention which promulgated it had authority so to do without
submitting it to a vote of the peopleBrittle v. People
Against the decision in the Wheeler case, , confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such ratification was in clear violation of the
prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol.
12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the , 1965 Ed. by
Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter
XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on
"The Creative Period in Politics, 1785-1788," Professor Morison delineates the genesis of the
Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297-
316). However, the Federal Constitution may be considered revolutionary from the view point of
McIver if the term is understood in "its wider sense to embrace decisive changes in the character of
government, even though they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
supraOxford History of the American Peoplerevolution
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The
Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was a revolutionary constitution of the thirteen (13) states.
In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9)
years after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning thereunder is not a legitimate
government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had long
been decided as early as the 1849 case of (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of
(178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of (223 U.S. 118, 133-151, 56
L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., , penned by
Mr. Chief Justice White, who re-stated:
Luther vs. BordenTaylor vs. BeckhamPacific States Telephone and Telegraph Company vs. Oregonsupra
As the issues presented, in their very essence, are, and , and embraced within the scope of
the scope of the powers conferred upon Congress, and , and the writ of error must therefore
be, and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
have long since by this Court been, definitely determined to be political and governmentalnot,
therefore within the reach of judicial power, it follows that the case presented is not within our
jurisdiction
In view of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere citation of the cases, but ,
state more at length than we otherwise would the issues and the doctrine expounded in the leading and
absolutely controlling case Luther v. Borden7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
" to enter upon this inquiry, proposed by the plaintiff, and it should be decided that the character
government had no legal existence during the period of time above mentioned, if it had been
annulled by the adoption of the opposing government, ."
For if this court is authorized then the laws passed by its legislature during that time were nullities; its
taxes wrongfully collected, its salaries and compensations to its officers illegally paid ; its public accounts
improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void,
and the officers who carried their decisions into operation answerable as trespassers, if not in some
cases as criminals
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States shall guarantee to
every state in the Union a republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive (when the legislature cannot
be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is
established one in a state. For, as the United State guarantee to each state a republican
government, . It is true that the contest in this case did not last long enough to bring the matter to
this issue; and as no senators or representatives were elected under the authority of the government
of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. ."
Congress must necessarily decide what government is established in the state before it can determine
whether it is republican or not. And when the senators and representatives of a state are admitted into the
Councils of the Union, the authority of the government under which they were appointed, as well as its
republican character, is recognized by the proper constitutional authority. And its decision is binding on
every other department of the government, and could not be questioned in a judicial tribunalYet the right
to decide is placed there and not in the courts
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude
by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after
disposing of a contention made concerning the 14th Amendment, and coming to consider a
proposition which was necessary to be decided concerning the nature and effect of the guaranty of S
4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and on application of the legislature, or
the Executive (when the legislature cannot be convened), against domestic violence."
xxx xxx xxx
", 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two opposing
governments of Rhode Island, namely, the charter government or the government established by a
voluntary convention, was the legitimate one, was a question for the determination of the political
department; and when that department had decided, the courts were bound to take notice of the
decision and follow it."
It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther
v. Borden
xxx xxx xxx
Even a constitutional amendment that is only promulgated by the Constitutional Convention without
authority therefor and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of (44 SE 754-755), the Court ruled:
Taylor vs. Commonwealth
The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is
that it was ordained and promulgated by the convention without being submitted for ratification or
rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of
the people of the state to revise and amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the only valid Constitution of the
state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the
Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of
June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by
its having been engaged for nearly a year in legislating under it and putting its provisions into
operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its
provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in
it, registering as voters under it to the extent of thousands through the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of the United States. (p.
755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the constitution must be duly
followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that
the Constitution was violated in submitting the proposal. ... .
Substance more than form must be regarded in considering whether the complete constitutional system
for submitting the proposal to amend the constitution was observed
In the 1925 case of (130 A 407, 408 410), the Court stated:
Taylor vs. King
There may be technical error in the manner in which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or
collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper
time, it is effective for all purposes when accepted by the majority. , 281 Pa. 207, 126 A. 263. (130 A
409).
Armstrong v. King
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Birmingham and
A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated
that: "The authorities are almost uniform that this ratification of an unauthorized act by the people
(and the people are the principal in this instance) renders the act valid and binding."
Ex parte
It has likewise been held that . (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is
enough that they are electors voting on the new Constitution
In the 1956 case of (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in
the procedure for the submission of the proposed constitutional amendment will not defeat the
ratification by the people."
Thomson vs. Peoples State Bank
Again, in the 1958 case of (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the
irregularity in failing to publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was held or once in each of
the 7-day periods immediately preceding the day of the election as required by the Constitution, did
not invalidate the amendment which was ratified by the people."
Swaim vs. Tuscaloosa County
The same principle was reiterated in 1961 by the (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of the proposed constitutional
amendment to the people for ratification consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by
good and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the
holding of the special election on the constitutional amendment, and (b) the alleged failure of the
State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in
the appointment of election commissioners in each of the 82 counties. ." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Mississippi Supreme Court in Barnes, et al. v. LadnerThe irregularities complained of, even if proved,
were not such irregularities would have invalidated the election
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and
during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have
long been desired by the people, had been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of
information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan.
17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the
1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for
these reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971
when the opposition won six out of eight senatorial seats despite the suspension of the privileges of
the writ of (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies
constraint on individual freedom as the proclamation of martial law. In both situations, there is no
total blackout of human rights and civil liberties.
habeas corpus
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of
a total of one hundred ten (110) members of the House of Representatives including the Speaker
and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmea opted to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a. All the other
functionaries recognize the new government and are performing their duties and exercising their
powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals
and quasi-judicial bodies created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to
the Republic of the Philippines before martial law continue to serve as such in our country; while two
new ambassadors have been accepted by the Philippines after the ratification of the 1973
Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to remain in their posts and
are performing their functions as such under the 1973 Constitution.
fait accompli
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by
requiring all election registrars to register 18-year olds and above whether literates or not, who are
qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government
which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels
and subversives as the only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President implementing the 1973
Constitution.
Of happy relevance on this point is the holding in 18 SW 522:
Miller vs. Johnson
If a set of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its
work a nullity. This would be revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established., and are now daily doing so.
Is the question, It is our undoubted duty, if a statute be unconstitutional to so declare it; also, if a
provision of the state constitution be in conflict with the federal constitution, to hold the former
invalid. But this is a very different case. . It is responsible to the people; but if it does act, then, when
the question is properly presented, it is the duty of the court to say whether it has conformed to the
organic law. .
The convention, however, was the offspring of law. The instrument which we are asked to declare invalid
as a constitution has been made and promulgated according to the forms of law. It is a matter of current
history that both the executive and legislative branches of the government have recognized its validity as
a constitutiontherefore, one of a judicial character?It may be said, however, that, for every violation of or
non-compliance with the law, there should be a remedy in the courts. This is not, however, always the
case. For instance, the power of a court as to the acts of the other departments of the government is not
an absolute one, but merely to determine whether they have kept within constitutional limits, it is a duty
rather than a power, The judiciary cannot compel a co-equal department to perform a dutyWhile the
judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and
also because, in times of great popular excitement, it is usually their last resort, yet it should at the same
time be careful to overstep the proper bounds of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as would be likely in this instance, if the power of
the judiciary permitted, and its duty required, the overthrow of the work of the convention
After the American Revolution the state of Rhode Island retained its colonial character as its
constitution, and no law existed providing for the making of a new one. In 1841 public meetings were
held, resulting in the election of a convention to form a new one, to be submitted to a popular
vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were
held for state officers, who proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state under martial law. It called another
convention, which in 1843 formed a new constitution. .
Whether the charter government, or the one established by the voluntary convention, was the legitimate
one, was uniformly held by the courts of the state not to be a judicial, but a political question; and the
political department having recognized the one, it was held to be the duty of the judiciary to follow its
decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while not expressly
deciding the principle, as it held the federal court, yet in the argument approves it, and in substance says
that where the political department has decided such a matter the judiciary should abide by it
Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that
the convention, when it reassembled, had no power to make any material amendment, and that such
as were made are void by reason of the people having theretofore approved the instrument. Then,
next, this court must determine what amendments were material; and we find the court, in effect,
making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the
court might differ as to what amendments are material, and the result would be confusion and
anarchy. One judge might say that all the amendments, material and immaterial, were void; another,
that the convention had then the implied power to correct palpable errors, and then the court might
differ as to what amendments are material. If the instrument as ratified by the people could not be
corrected or altered at all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court would be lacking a promulgation
by the convention; and, if this be essential, then the question would arise, what constitution are we
now living under, and what is the organic law of the state? A suggestion of these matters shows
what endless confusion and harm to the state might and likely would arise. . It is not a question of
whether merely an amendment to a constitution, made without calling a convention, has been
adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. ,
60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; , 1 Nev. 391, 12 Pac. Rep. 835. .
If, through error of opinion, the convention exceeded its power, and the people are dissatisfied, they have
ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument
provides for amendment and change. If a wrong has been done, it can, in the proper way in which it
should be remedied, is by the people acting as a body politicKoehler v. HillState v. TuffyBut it is a case
where a new constitution has been formed and promulgated according to the forms of law. Great interests
have already arisen under it; important rights exist by virtue of it; persons have been convicted of the
highest crime known to the law, according to its provisions; the political power of the government has in
many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our commonwealth
We need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its powers, yet, as the entire instrument has been recognized as
valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the rights of the people, who can and properly should remedy the matter, if not to their liking, if
it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the
state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of
the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of
whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot
dictate to our principal, the sovereign people, as to how the approval of the new Constitution should
be manifested or expressed. The sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper method of giving assent to the new
Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We affirmed in (Pres. Election
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another
term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not
having a similar mandate by directfrom the sovereign people, to execute the law and administer the
affairs of government, must restrain its enthusiasm to sally forth into the domain of political action
expressly and exclusively reserved by the sovereign people themselves.
Osmea vs. Marcos fiat
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary
state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal
State like the United States, in order to secure and preserve the existence of the Federal Republic of
the United States against any radical innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous of the powers of the Federal government
presently granted by the American Constitution. This dangerous possibility does not obtain in the
case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations."
* (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he
might have altered his views on the matter.
MAKASIAR, concurring:
Even if conclusiveness is to be denied to the truth of the declaration by the President in
Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the
Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department of Local Government and
Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents public officers dated March
7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of proof by shifting it
from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty
to demonstrate by clear and convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources which could be biased and hearsay, aside from the
fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary
act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of
the sovereign people their to the basic Charter that shall govern their lives hereafter may be for
decades, if not for generations.
imprimatur
Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the
Citizens' Assemblies, despite their admission that the term "" in the preamble as well as in Sections
1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights
includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful
citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in
the referendum, about which no proof was even offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or decision and whom petitioners would deny their
sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their
progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age
or above to express their conformity or non conformity to the proposed Constitution, because their
stake under the new Charter is not any less than the stake of the more fortunate among us. As a
matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."
Filipino people"people"
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned
from voting. Only those who had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
very negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the
results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or
correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming
vote of close to 15 million citizens because there was no official certification to the results of the
same from the Department of Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This
should suffice to dispose of this point. Even in the absence of such certification, in much the same
way that in passing law, Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967
Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford,
etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of
the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by
the fact that the Department of Local Governments, the Department National Defense and the
Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming
majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence,
the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof
beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower
than that of the Chief of State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and that four (4) of the five
(5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination
against the President in matters of this nature? Unsupported as their word is by any credible and
competent evidence under the rules of evidence, must the word of the petitioners prevail over that of
the Chief Executive, because they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the incumbent President
realizes that he risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people, inevitable
concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot stand on the proposition that
the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be
needed for the purpose of bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven
(7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms,
especially for the benefit of the landless and the laboring classhow politics and political bargaining
had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and
L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or
outside of it; but the question may be asked as to what exactly they did to support such reforms. For
the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the
establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years
since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been
effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted
like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited reforms to
be within a year or to are brighter. It would seem therefore to the duty of everyone including herein
petitioners to give the present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same
Constitution.

As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a
limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached
upon the province exclusively reserved to and by the sovereign people. This Court did not heed to
the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume
that we alone can speak with wisdom as against the judgment of the people on the basic instrument
which affects their very lives. WE cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply
and interpret the Constitution and the laws for the benefit of the people, not against them nor to
prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time
may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to
them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution
without being a part of the government established pursuant thereto. Unlike in the Borden case, ,
where there was at least another government claiming to be the legitimate organ of the state of
Rhode Island (although only on paper as it had no established organ except Dorr who represented
himself to be its head; in the cases at bar there is no other government distinct from and maintaining
a position against the existing government headed by the incumbent Chief Executive. (See Taylor
vs. Commonwealth, ). There is not even a rebel government duly organized as such even only for
domestic purposes, let alone a rebel government engaged in international negotiations. As
heretofore stated, both the executive branch and the legislative branch established under the 1935
Constitution had been supplanted by the government functioning under the 1973 Constitution as of
January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim
to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without
being part of any government?
suprasupra
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief
Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the
American civil war he apparently had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of in Merryman (Federal Case No. 9487 [1861]). But who
exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in
Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting
the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a
lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a
member of the Maryland state legislature for several terms. He was a leader of the Federalist Party,
which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew
Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General
of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States
Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years
until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he
himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the
Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to
secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his
decision in (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the
rights of an American citizen and that his status as a slave is determined by his returning to a slave
state. One can therefore discern his hostility towards President Lincoln when he decided Ex parte
Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly
be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes
should not be expressed indiscriminately just to embellish one's rhetoric.
habeas corpusEx parteDred Scott vs. Sandford
Distinguished counsel in L-36165 appears to have committed another historical error, which may be
due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On
the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733),
refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held
Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers,
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of
Marshal Petain would not relish the error. And neither would the members of the clan of Marshal
Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history
on his own merits. The foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as
by his eminence as law professor, author of law books, political leader, and member of the newly
integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise
his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and
idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses
if they can muster a quorum or by causing the arrest of other senators to secure a quorum and
thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17),
if they believe most vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18,
1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have
a ring of credibility, if they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts others to be brave must
first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-
36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the
members of this Court who disagree with petitioners' views are materialistic cowards or mercenary
fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers
that they are, do not recognize the sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by petitioners,
which We do not find now necessary to deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES
SHOULD BE DISMISSED. J.,
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question
as to whether a constitutional amendment or the revised or new Constitution has been validly
submitted to the people for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, . (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs.
Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34;
Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio
St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8
SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P
1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new
Constitution should not be condemned "unless our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the
1956 case of Tipton vs. Smith, et al., ).
accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the
people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no
submission at all to the peoplesupra
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such
presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS,
EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three
grand departments of the Government, namely, the legislative, the executive and the judicial. As a
fourth separate and distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as well as the form of the
Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the Government in its proceedings, including the printing of its own journals
(Taada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention
has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention
such prerogative, would leave it at the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit the proposed
Constitution drafted by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution,
because the same abolished the Senate by creating a unicameral National Assembly to be presided
by a Prime Minister who wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that
the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress
membership in the interim National Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords them little comfort; because the
convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1],
Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for such a referendum as well as
the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29
approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a be issued calling a plebiscite for the ratification of the
proposed new Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the new Constitution.
decree
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the
Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-
making power of the President under Section 63 of the Revised Administrative Code, which
expressly confers on the Chief Executive theor re-arranging or re-adjusting any district, division or
part of the Philippines " ... ." (Emphasis supplied). Hence, as consultative bodies representing the
localities including the barrios, their creation by the President thru Presidential Decree No. 86 of
December 31, 1972, cannot be successfully challenged.
power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or disposing of
issues of general concern
The employment by the President of these Citizens' Assemblies for consultation on the 1973
Constitution or on whether there was further need of a plebiscite thereon, both issues of national
concern is still within the delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not
prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with
the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No.
29 expressly states "that copies of this resolution as approved in plenary session be transmitted to
the President of the Philippines and the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said
resolution that were transmitted to the Commission on Elections at best serve merely to notify the
Commission on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in
the superior position to decide when the plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country
under martial law by resolving to "propose to President Ferdinand E. Marcos that a be issued calling
a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated
authority.
decree
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive
or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the
power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria
should be required, the same are contained in the "Whereas" clauses of the Constitutional
Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution
has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in
the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission to the people
for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress
not being in session, could the President, by the decree under question, call for such a plebiscite?
Under such circumstances, . The view has been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of submission becomes ministerial,
with the political branches devoid of any discretion as to the holding of an election for that purpose.
Nor is the appropriation by him of the amount necessary to be considered as offensive to the
Constitution. . . It is understandable why it should be thus. . (pp. 2-3, concurring opinion of J.
Fernando in L-35925, etc., emphasis supplied).
a negative answer certainly could result in the work of the Convention being rendered nugatoryIf it were done by him in his capacity as
President, such an objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in his capacity
as agent of the Convention to assure that there be submission to the people, then such an argument loses forceThe Convention itself could
have done soIf it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such
authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing
his role as its agent, could be held as not devoid of such competence
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments
during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of
questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution,
answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work
from imperfect man. The result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals
of whom they are composed. The compacts which are to embrace thirteen distinct States in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library
Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are or
beyond the power of the Constitutional Convention to propose.
ultra vires
This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue , after examination under oath or affirmation of
the complainant and the witnesses may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law
Article XIV
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into international treaties or agreements as the
national welfare and interest may require." (Without the consent of the National Assembly.)
Article XVII
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations, are hereby recognized as legal, valid and binding. When the national interest so
requires, the incumbent President of the Philippines or the interim Prime Minister may review all
contracts, concessions, permits, or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted, issued or acquired before the
ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965,
& L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio
and the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally deemed fit to propose save
perhaps what is or may be insistent with what is now known, particularly in international law, as
not only because the Convention exercised sovereign powers delegated thereto by the people
although insofar only as the determination of the proposals to be made and formulated by said body
is concerned but also, because said proposals cannot be valid as part of our Fundamental Law
unless and until "approved by the majority of the votes cast at an election which" said proposals "are
submitted to the people for their ratification," as provided in Section 1 of Article XV of the 1935
Constitution. (Pp. 17-18, Decision in L-35925, etc.).
Jus Cogens
This Court likewise enunciated in (L-32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional
Convention has the authority to "entirely overhaul the present Constitution and propose an entirely
new Constitution based on an ideology foreign to the democratic system ...; because the same will
be submitted to the people for ratification. Once ratified by the sovereign people, there can be no
debate about the validity of the new Constitution."
Del Rosario vs. Comelec
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement
in the Del Rosario case, , and added: "... it seems to me a sufficient answer that once convened, the
area open for deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler
vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v.
Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900];
Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich.
31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145
Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
supra
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that
when the people elected the delegates to the Convention and when the delegates themselves were
campaigning, such limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972
without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article
XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex
"M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and
on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly
signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal was, as President of the
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in
L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR
RATIFICATION OF 1973 CONSTITUTION.

(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted for ratification by the ."
called by Congress qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with the existing
election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior
to such election
This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, ).
supra
In effect, petitioners and their counsels are amending by a strained and tortured construction Article
XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not
possess through some kind of escamotage. This Court should not commit such a grave error in
the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the
proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is
so detailed that it specifies that the submission should be at a general or special election, or at the
election for members of the State legislature only or of all state officials only or of local officials only,
or of both state and local officials; fixes the date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authorizes expressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901];
Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).
As typical examples: Constitution of Alabama (1901):

Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the
legislature in the manner following: The proposed amendments shall be read in the house in which
they originate on three several days, and, if upon the third reading, three-fifths of all the members
elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other
house, in which they shall likewise be read on three several days, and if upon the third reading,
three-fifths of all the members elected that house shall vote in favor of the proposed amendments,
the of the legislature at which the amendments are proposed of the session of the legislature at
which the amendments were proposed. , together with the proposed amendments, shall be given by
proclamation of the governor, in such manner as the legislature shall direct,. On the day so
appointed an election shall be held for the vote of the qualified electors of the state upon the
proposed amendments. If such election be held on the day of the general election, the officers of
such general election shall open a poll for the vote of the qualified electors upon the proposed
amendments; if it be held on a day other than that of a general election, officers for such election
shall be appointed; and the election shall be held in all things in accordance with the law governing
general elections. In all elections upon such proposed amendments, , and counted, in the same
manner as in elections for representatives to the legislature; and if it shall thereupon appear that a
majority of the qualified electors who voted at such election upon the proposed amendments voted
in favor of the same, such amendments shall be valid to all intents and purposes as parts of this
Constitution. The result of such election shall be made known by proclamation of the governor.
Representation in the legislature shall be based upon population, and such basis of representation
shall not be changed by constitutional amendments.
legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general
election next succeeding the session or upon another day appointed by the legislature, not less than three months after the final
adjournmentNotice of such electionwhich shall be published in every county for at least eight successive weeks next preceding the day
appointed for such electionthe votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section
284 of this Constitution, the substance or subject matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly indicated. Following each proposed amendment on
the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No".
The choice of the elector shall be indicated by a cross mark made by him or under his direction,
opposite the word expressing his desire, and no amendment shall be adopted unless it receives the
affirmative vote of a majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session
thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of
all the members, elected to each house, such proposed amendments , and if a majority of the
electors voting at such election adopt such amendments, the same shall become a part of this
Constitution; .
shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is
published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be
submitted to the electors of the State for approval or rejectionbut no more than three amendments shall be proposed or submitted at the
same time. They shall be so submitted as to enable the electors to vote on each amendment separately
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of state shall cause the same to be
published in at least one newspaper in each county of the state where a newspaper is published, for
three months preceding the next election for representatives, at which time, the same shall be
submitted to the electors, for their approval or rejection; and if a majority of the electors voting on
said amendments, at said election, shall adopt the amendments, the same shall become a part of
the constitution. When more than one amendment shall be submitted at the same time, they shall be
so submitted as to enable the electors to vote on each amendments separately; and not more than
three propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation.
The General Assembly may propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will
stand when amended and passed by three fifths of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or
bills proposing amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not more than one
may be published, then in the newspaper, and in three newspapers published in the City of
Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at
which the proposed amendment or amendments shall be submitted, in a form to be prescribed by
the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast
for and against said proposed amendment or amendments, severally, shall be returned to the
Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a
majority of the votes cast at said election on said amendment or amendments, severally, were cast
in favor thereof, the Governor shall, by his proclamation, declare the said amendment or
amendments having received said majority of votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall
be part of the said Constitution. When two or more amendments shall be submitted in the manner
aforesaid, to the voters of this State at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All
amendments proposed by the general assembly or by the initiative shall be submitted to the electors
for their approval or rejection by official ballot title as may be provided by law, on a separate ballot
without party designation, at the next general election, or at a special election called by the governor
prior thereto, at which he may submit any of the amendments. No such proposed amendment shall
contain more than one amended and revised article of this constitution, or one new article which
shall not contain more than one subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two consecutive weeks in two newspapers
of different political faith in each county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the electors to vote on each
amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as
defined in Article V of the 1935 Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935 Constitution as ratified on May
14, 1935 by the people did not contain Article X on the Commission on Elections, which article was
included therein pursuant to an amendment by that National Assembly proposed only about five (5)
years later on April 11, 1940, ratified by the people on June 18, 1940 as approved by the
President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers
of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite, because the Commission on Elections was
not in existence then as was created only by Commonwealth Act No. 607 approved on August 22,
1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Taada &
Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission,
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Taada & Fernando, Constitution of the Philippines,
1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).

Because before August, 1940 the Commission on Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to
the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress)
and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of
the President and the Vice-President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed
the corresponding amendment to Article XV by providing therein that the plebiscite on amendments
shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935
wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in 1935 or in
the 1940 amendment by just adding a few words to Article XV by changing the last phrase to
"submitted for ratification to the qualified electors as defined in Article V hereof," or some such
similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified
electors under Article V of the 1935 Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the
term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II
on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes.
But in Section 5 of the same Article II on social justice, the term "people" comprehends not only
Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of
Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does
so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly
provides that the senators "shall be chosen at large by the qualified electors of the Philippines as
may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall
"be elected by the qualified electors." The only provision that seems to sustain the theory of
petitioners that the term "people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of
Article VI, which specifically prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions and
expressly require ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention . As above demonstrated, the 1934-35 Constitutional Convention limits
the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands
of succeeding future constitutional conventions as to who should ratify the proposed amendment or
revision.
satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating that the 1934-
35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress,
indicates that there is need of a statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a, on
the question of woman's suffrage ... and that said amendment in the Official Gazette in English and
Spanish for three consecutive issues " (Sec. 12, Com. Act No. 34), specifies that the provisions of
the Election Law regarding, the holding of a , insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to
the returns of the board of inspectors(Sec. 10, Com. Act No. 34).
plebiscite on Friday, April 30, 1937shall be published at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous
place in its municipal and provincial office building and in its polling place not later than April 22, 1937special election shall be counted by the
National Assembly
The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it
expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517
and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and
1946, including the amendment creating the Commission on Elections, specifically provided that the
provisions of the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the
proposed amendments to the Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed amendments to the Constitution
adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for
approval or disapproval at a to be held throughout the Philippines on Tuesday, October 24, 1939";
that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall
be submitted at following election of local officials," (Sec. 1, Com. Act No. 492) that the said
amendments shall be published in English and Spanish in three consecutive issues of the Official
Gazette ; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492);
that the election shall be conducted ; that within thirty (30) days after the election, for the purpose of
canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
general election at least ten (10) days prior to the electionsaccording to provisions of the Election Code insofar as the same may be
applicableSpeaker of the National Assembly shall request the President to call a special session of the Assembly
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing bicameral
Congress, re-election of the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall
be published in three consecutive issues of the Official Gazette in English and Spanish at least 20
days prior to the election and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election
Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to
the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment
consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval
or disapproval, which shall be held , in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall bein English and Spanish in three consecutive issues of the
Official Gazette ; that copies of the same shall be in a conspicuous place and in every polling place
(Section 2, R.A. No. 73); and Com. Act No. 657 creating the Commission on Elections, (Sec. 3, R.A.
No. 73); and that within 30 days after the election, the Senate and House of Representatives shall
hold a joint session to canvass the returns and certify the results thereof (Section 6, R.A. No. 73).
at a general election on March 11, 1947 published at least 20 days prior to the election postednot later than February 11, 1947that the
provisions of Com. Act No. 357 (Election Code) shall apply to the election insofar as they are not inconsistent with this Act
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all the
provisions of the election law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act
No. 357). Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8
days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to
plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code applies to plebiscites under Article XV of the 1935 Constitution, there would be
no need for Congress to expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935 Constitution.
ipso facto
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike
the various State Constitutions of the American Union (with few exceptions), Article XV does not
state that only qualified electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very detailed amending process
and specify that only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which
was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership
of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
All duly registered barrio assembly members qualified to vote may vote in the plebiscite.
Voting procedures may be made either in writing as in regular election, and/or declaration by
the voters to the board of election tellers. The board of election tellers shall be the same
board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the
barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the barrio council. A
plebiscite shall be called .
to approve any budgetary, supplemental appropriations or special tax ordinances
For taking action on any of the above enumerated measures, majority vote of all the barrio
assembly members registered in the list of barrio secretary is necessary.
Sec. 4. The barrio assembly. The barrio assembly shall consist of all persons who are residents
of the barrio for at least six months, , citizens of the Republic of the Philippines and who are kept by
the Barrio Secretary.
eighteen years of age or overduly registered in the list of barrio assembly members
The .
barrio assembly shall meet at least once a year to hear the annual report of the barrio council concerning the activities and finances of the
barrio
It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the
members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is given one week prior to the
meeting except in matters involving public safety or security in which case notice within a reasonable
time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio
captain, or . The barrio secretary or in his absence, .
any assembly member selected during the meeting, shall act as presiding officer at all meetings of the barrio assemblyany member
designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly
For the purpose of conducting business and taking any official action in the barrio assembly, it is
necessary that .
at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these
present at the meeting there being a quorum
Sec. 5. Powers of the barrio assembly. The powers of the barrio assembly shall be as follows:
a. To recommend to the barrio council the adoption of measures for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its
approval by the barrio council; and
d. To hear the annual report council concerning the activities and finances of the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding of the plebiscite.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. Every citizen of the Philippines, twenty-one years
of age or over, able to read and write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters kept by the barrio secretary,
who is not otherwise disqualified, .
may vote or be a candidate in the barrio elections
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years after service of his sentence;
b. Any person who has violated his allegiance to the Republic of the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio
assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of
age, able to read and write, residents of the barrio during the 6 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may
be made ... either in writing as in regular elections, and/or to the board of election tellers."
declaration by the voters
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members
qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-
36165 that only those who are 21 years of age and above and who possess all other qualifications of
a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6;
because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the
one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute
a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at
least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated
Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165 and two of the petitioners in
L-36164 participated in the enactment of Republic Act No. 3590 and should have known the
intendment of Congress in expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can
include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be
exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the
1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a
referendum conducted from January 10 to 15, 1973, should be accorded the presumption of
correctness; because the same was based on the certification by the Secretary of the Department of
Local Government and Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the said Department Secretary
should likewise be presumed; because it was done in the regular performance of his official
functions aside from the fact that the act of the Department Secretary, as an alter ego of the
President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by
the Department Secretary and the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment
to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the
bicameral Congress, creating the Commission on Elections and providing for two consecutive terms
for the President, and the 1947 parity amendment, cannot be invoked; because those amendments
were proposed by the National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional
Convention, which as heretofore discussed, has the equal power to prescribe the modality for the
submission of the 1973 Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be
utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total
votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the Department of Local
Government and Community Development that in Rizal there were 1,126,000 Yes votes and
100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269
No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department
of Local Government and Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by
way of extrapolation to the other provinces, cities and towns of the country, the result would still be
an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial law
and up to the present time, he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15,
1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies
at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred
to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,
1973, he caused the preparation of a letter addressed to Secretary Jose Roo of the Department of
Local Government and Community Development showing the results of the referendum in Pasay
City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay
City, for which reason he did not send the aforesaid letter pending submittal of the other results from
the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office of the President (Annex
5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an
affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office
asked him for the results of the referendum; that he informed her that he had in his possession
unsigned copies of such results which may not be considered official as they had then no knowledge
whether the original thereof had been signed by the mayor; and that in spite of his advice that said
unsigned copies were not official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city
(Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of
this year," does not necessarily mean that there was no such meeting in said barrio; for she may not
have been notified thereof and as a result she was not able to attend said meeting. Much less can it
be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The
barrio captain or the secretary of the barrio assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and
Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the
compilation and tabulation of the results of the referendum among the Citizens' Assemblies in
Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies;
but many results of the referendum were submitted direct to the national agencies having to do with
such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of
the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a
letter to the President dated January 15, 1973 informing him of the results of the referendum in
Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and
292,530 mentioned in said letter were based on the certificates of results in his possession as of
January 14, 1973, which results were made the basis of the computation of the and that after
January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities
of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the
province as said referendum was then still going on from January 14-17, 1973, for which reason the said letter merely stated that it was only
a "summary result";
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and
Community Development, issued a certificate dated March 16, 1973 that she was shown xerox
copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the
Secretary of the Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder
Annex Pasay City" addressed to the Secretary of the Department of Local Government and
Community Development; that both xerox copies of the unsigned letters contain figures showing the
results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were
not received by her office and that her records do not show any such documents received by her
office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing
said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the
voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in
the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been
signed by him for he was then under house arrest, on the one hand, and the number of votes
certified by the Department of Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-
36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes
votes would still be overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the Secretary of the Department of
Local Government and Community Development and the figures furnished to counsel for petitioners
in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were
more votesthan those against, only serve to emphasize that there was freedom of voting among the
members of the Citizens' Assemblies all over the country during the referendum from January 10 to
15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite would not outnumber those against holding such
plebiscite.
in favor of the plebiscite to be held later
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of
approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens'
Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second
set of questions including the question "Do you approve of the new Constitution?" was received only
on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the
referendum" were due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in
the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts,
40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the
referendum in certain localities may exceed the number of voters actually registered for the 1971
elections, can only mean that the excess represents the qualified voters who are not yet registered
including those who are at least 15 years of age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have been granted absolute pardon or were
sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election
Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party,
stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities
to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens' Assemblies in
Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City
is being intimidated, having been recently released from detention; because in the same letter of
Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and
legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to
Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such
suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as
amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and
Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more
impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
dated March 16, 1973 address to the Secretary of the Department of Local Government and
Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total number of qualified voters" which does not deem to
answer the problem. This computation apparently fails to account for some 5.6 million persons "21
years old and over" who were not registered voters (COMELEC), but who might be qualified to
participate at the Citizen's Assembly.
2) The official population projection of this office (medium assumption) for "15 year olds and over" as
of January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the
ratio of the latter figure to the former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number of 15-
20 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participated
at the Citizens' Assembly but might not have been registered voters at the time, assuming that all the
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of
15-20 years olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the number in this age group,
which was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
over" for the same period which was estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include names of voters who are
already dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly.
It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to
vote" will be more than 10,548,197 and hence the "difference or implied number of registered voters
that participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified voters that supposedly voted"
could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for
(b), accordingly, will also be less than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the
official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the
referendum, the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the
difference between 16,702,000 who participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-
year olds and above but below 21 but also the qualified electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator
Sergio Osmea, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the
incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum
from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in
the 1969 Presidential elections, have several members in their families and relatives who are
qualified to participate in the referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of
choice, because the people fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably
generates fear in the individual. Even without martial law, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed, many individuals fear such
sanctions of the law because of lack of effective equal enforcement or implementation thereof in
brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction of the punishment or
sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do
not come under such category.
(7) Petitioners likewise claim that open voting by or raising of hands violates the secrecy of the ballot
as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain
for such guarantee or prescription in said organic law. The Commission on Elections under the 1940
Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election."
Congress, under its plenary law-making authority, could have validly prescribed in the election law
open voting in the election of public officers, without trenching upon the Constitution. Any objection
to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting
was demanded by partisan strife in elections for elective officials. Partisanship based on party or
personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments
or on a new Constitution. We have seen even before and during martial law that voting in meetings
of government agencies or private organizations is usually done openly. This is specially true in
sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when
voting on national or local issues, not on personalities.
viva voce
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have
been true in certain areas, but that does not necessarily mean that it was done throughout the
country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press
Club officers who were elected by acclamation presided over by its former president, petitioner
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this
country are against the new Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly
employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want
the new Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This
is quite inaccurate; because even before the election in November, 1970 of delegates to the
Constitutional Convention, the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June, 1971 to November 29,
1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities and debated over the radio and
on television. The Philippines is a literate country, second only to Japan in the Far East, and more
literate perhaps than many of mid-western and southern states of the American Union and Spain.
Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
around the country doing a 30-minute documentary on the Philippines for American television stated
that what impressed him most in his travel throughout the country was the general acceptance of the
New Society by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and
Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-
Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of the
Philippines. President Marcos has been prompt and sure-footed in using the power of
presidential decree under martial law for this purpose. . Clearly, he knows the targets.
What is not yet certain is how accurate have been his shots. .
He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official
corruption, tax evasion and abuse of oligarchic economic powerNevertheless, there is marked public support for his leadership
and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark
The United States business community in Manila seems to have been re-assured by recent
developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the
majority of the population, do not like the reforms stipulated in the new Constitution, as well as the
decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore
stated, that all these reforms were the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as well as in public forums sponsored by concerned
citizens or civic organizations at which Con-Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1, 1971 to November
29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973 Constitution were already
expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent
assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING
MARTIAL LAW.

The position of the respondent public officers that undermartial law, the President as Commander-in-
Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of . (83 Phil. 171,
177-178) which reiterates the 1945 case of (75 Phil. 563, 571-72). The trial of General Kuroda was
after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
Kuroda vs. Jalandoni, et alYamashita vs. Styer
The promulgation of said executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces, as upheld by this Court in the case of (L-129,
42 Off. Gaz., 664) when we said
Yamashita vs. Styver
Consequently, the President as Commander-in-Chief is fully empowered to consummate this
unfinished aspect of war, namely the trial and punishment of war criminals, through the
issuance and enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied).
... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of
the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
"War is not ended simply because hostilities have ceased. After cessation of armed hostilities,
incidents of war may remain pending which should be disposed of as in time of war. "." (Ex parte
Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial
and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a
military commission "has jurisdiction so long as the technical state of war continues. This includes
the period of an armistice, or military occupation, up to the effective date of treaty of peace, and may
extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals,
American Bar Association Journal, June, 1944).
An important incident to a conduct of war is the adoption measures by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of
war
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view,
when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined
martial law as "." (Emphasis supplied). There is an implied recognition in the aforesaid definition of
martial law that even in places where the courts can function, such operation of the courts may be
affected by martial law .... It is possible that the courts, in asserting their authority to pass upon
questions which may adversely affect the conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial law may restrict such judicial function until
the danger to the security of the state and of the people shall have been decimated.
the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of
emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safetyshould
their "functioningthreaten the public safety"
The foregoing view appears to be shared by Rossiter when he stated:
Finally, . It is important to recognize the true and limited ends of any practical application of the
principle of constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the
government of a free state is proceeding on its way and meeting the usual problems of peace and
normal times within the limiting framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent offices and institutions; the
power to exercise those functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this government was instituted are in
possession of a lengthy catalogue of economic, political, and social rights which their leaders
recognize as inherent and inalienable. . And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing more:; it extends no further in
time than the attainment of that end; and it makes no alteration in the political, social and economic
structure of the nation which cannot be eradicated with the restoration of normal times. In short, the
aim of constitutional dictatorship is the complete restoration of the . This historical fact does not
comport with philosophical theory, . (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p.
7; emphasis supplied.)
this strong government, which in some instances might become an outright dictatorship, can have no other purposes than the preservation of
the independence of the state, the maintenance of the existing constitutional order, and the defense of the political and social liberties of the
peopleA severe crisis arises the country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the impact of a
world-wide depression threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act arbitrarily and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the particular crisis to end the crisis and restore normal times. The government
assumes no power and abridges no right unless plainly indispensable to that endstatus quo ante bellumthat there never has been a perfect
constitutional dictatorship, is an assertion that can be made without fear of contradiction. But this is true of all institutions of government, and
the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should never be
permanent in character or effect. Emergency powers are strictly conditioned by their purpose
and this purpose is the restoration of normal conditions. The . For example, of the state or
constitute permanent derogations from existing law under an emergency enabling act, .
Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact.
By this same token, the decisions and sentences of extraordinary courts should be reviewed
by the regular courts after the termination of the crisis.
actions directed to this end should therefore be provisionalmeasures of a legislative nature which work a lasting change in the
structureshould not be adopted at least not without the positively registered approval of the legislature
But what if a radical act of permanent character, one working lasting changes in the political
and social fabric, is indispensable to the successful prosecution of the particular
constitutional dictatorship? ; as a constitutional dictator he had a moral right to take this
radical action. . (P. 303, emphasis supplied).
The only answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to proceed to
the revolutionary step of emancipation in aid of his conservative purpose of preserving the UnionNevertheless, it is imperative that
any action with such lasting effects should eventually receive the positive approval of the people or of their representatives in the
legislature
ESGUERRA, concurring:
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government exercises more powers and
respects fewer rights in order "to end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of that end the complete restoration of
peace. In our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the to the complete restoration of normalcy. Exercise of legislative power by the
President as Commander in Chief, upon his proclamation of martial law, is justified because, as he
professes, it is directed towards the institution of radical reforms essential to the elimination of the
causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the
rebellious, insurgent or subversive apparatus.
sine qua non
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within the shortest possible time to hasten the
restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain
its existence?" That was the dilemma that vexed President Lincoln during the American Civil War,
when without express authority in the Constitution and the laws of the United States, he suspended
one basic human freedom the privilege of the writ of in order to preserve with permanence the
American Union, the Federal Constitution of the United States and all the civil liberties of the
American people. This is the same dilemma that presently confronts the Chief Executive of the
Republic of the Philippines, who, more than the Courts and Congress, must, by express
constitutional mandate, secure the safety of our Republic and the rights as well as lives of the people
against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution
(Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent
revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist
reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of reforms. In the exercise of his
constitutional and statutory powers, to save the state and to protect the citizenry against actual and
threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time, should not be regarded as
peremptory commands; otherwise the dead hand of the past will regulate and control the security
and happiness of the living present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of
the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the
meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its
terms must be construed in the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely,
heed should be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions like those posed before Us the blending of idealism and practical
wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court
and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, ." (Frankfurter, Law and
Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave utterance to the truth that
"As such or expansion . Growth implies changes, political, economic and social." (Brandeis
Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell
emphasizes "practical wisdom," for "." (Powell, the Validity of State Legislation, under the Webb-
Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, ; emphasis
supplied).
habeas corpuslaw is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble senseOur
Constitution is not a straight jacket. It is a living organism. , it is capable of growthand adaptation to new conditionsthe logic of constitutional
law is the common sense of the Supreme Courtsupra
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except
change. Living organisms as well as man-made institutions are not immutable. Civilized men
organize themselves into a State only for the purpose of serving their supreme interest their
welfare. To achieve such end, they created an agency known as the government. From the savage
era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and governments have mutated in their
search for the magic instrument for their well-being. It was trial and error then as it is still now.
Political philosophies and constitutional concepts, forms and kinds of government, had been
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a
particular given epoch. This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still.
As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is
inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As
Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress
to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs
least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let
fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750).
In between, the shades vary from direct democracy, representative democracy, welfare states,
socialist democracy, mitigated socialism, to outright communism which degenerated in some
countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the
seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views,
concepts, methods and techniques when brought into the actual arena of conflict as a public
functionary face to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of constitutional issues that
immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal
realism. The national leader, who wields the powers of government, must and has to innovate if he
must govern effectively to serve the supreme interests of the people. This is especially true in times
of great crises where the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion and subversion have
become covert, subtle and insidious, there should be a recognition of the corresponding authority on
the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal,
spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I know also, that laws and
institutions must go hand in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths disclosed and manners and
opinions change, with the change of circumstances, institutions must also advance, and keep pace
with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It
cannot be adequately and fairly appraised within the present ambience, charged as it is with so
much tension and emotion, if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President Abraham Lincoln who
suspended the privilege of the writ of without any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the
governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the
Negro slaves in America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of , which power the American
Constitution and Congress did not then expressly vest in him. No one can deny that the successful
defense and preservation of the territorial integrity of the United States was due in part, if not to a
great extent, to the proclamation of martial law over the territory of Hawaii main bastion of the
outer periphery or the outpost of the American defense perimeter in the Pacific which protected
the United States mainland not only from actual invasion but also from aerial or naval bombardment
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American
Supreme Court acted with courage in its decision in the cases of (filed on May 10, 1865 argued on
March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after
the lifting of the proclamation suspending the privilege of the writ of , long after the Civil War and the
Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed.,
pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was
the delay on the part of the American Supreme Court in deciding these cases against the position of
the United States President in suspending the privilege of the writ of in one case and approving
the proclamation of martial law in the other deliberate as an act of judicial statesmanship and
recognition on their part that an adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle
against an organized and well armed rebellion within its own borders and against a formidable
enemy from without its territorial confines during the last global armageddon?
habeas corpushabeas corpusEx parte Milligan and Duncan vs. Kahanamokuhabeas corpushabeas corpus
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES AGAINST SENATORS.

MANDAMUS
In G.R. No. L-36165, will not lie to compel respondents Gil Puyat and Jose Roy to convene the
Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because
pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this
Court cannot legally reach a coordinate branch of the government or its head. This is a problem that
is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a
majority of the senators can convene, they can elect a new Senate President and a new Senate
President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent
members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an
appeal to the people. The dictum , is not absolute and certainly does not justify the invocation of the
power of this Court to compel action on the part of a co-equal body or its leadership. This was
emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17,
22,24), with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar.
We stress that the doctrine of separation of powers and the political nature of the controversy such
as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to
command performance by the head of such a co-ordinate body of his functions..
mandamusubi jus, ubi remedium
Mystifying is the posture taken by counsels for petitioners in referring to the political question
doctrine almost in mockery as a magic formula which should be disregarded by this Court,
forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts, conserves the unity of our
people, strengthens the structure of the government and assures the continued stability of the
country against the forces of division, if not of anarchy.
Moreover, if they have rum, the senators can meet anywhere. Validity of the acts of the Senate does
not depend on the place of session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on
the 4th Monday of January, unless a different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. The fact that the doors of Congress are padlocked, will not prevent the senators
especially the petitioners in L-36165 if they are minded to do so, from meeting elsewhere at
the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner
Gerardo Roxas in L-36165.
a quo
However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly
meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five
former senators for in L-36165 is useless.
mandamus
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, will
lie only if there is a law imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is
not a law because it is not enacted by both Houses and approved by the President.
mandamus
The Constitutional provision on the convening of Congress, is addressed to the individual members
of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR TEN
VOTES OF SUPREME COURT.

The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification
of the 1973 Constitution is null and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-
Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least
as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should
be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the
Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must
be deemed to be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We
swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry
and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common weal. A civilized society cannot long endure without peace and order, the maintenance of
which is the primary function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is the first law of nature and ranks
second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly
submits to certain constraints on his freedom for the general welfare and the preservation of the
State itself, even as he reserves to himself certain rights which constitute limitations on the powers
of government. But when there is an inevitable clash between an exertion of governmental authority
and the assertion of individual freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no alternative but to submit to the
superior right of the government to defend and preserve the State. In the language of Mr. Justice
Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life,
the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See
Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing
men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53
L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and
security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of
disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long
before September 21, 1972, realized almost too late that he was being deceived by his partymates
as well as by the opposition, who promised him cooperation, which promises were either offered as
a bargaining leverage to secure concessions from him or to delay the institution of the needed
reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to
save the Republic from being overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing the rebels, secessionists and communists for
their own personal or political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace,
more than for their own selves, they should be willing to give the incumbent Chief Executive a
chance to implement the desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before normalcy is restored, the
people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes
the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and were burned at stake or
beheaded or hanged or guillotined by the very people whom they at first championed and later
deceived. The most bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution,
like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
J.,
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose
J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared
the ratification of the Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on
December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on
January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution
because they are highly unwise and objectionable and the people were not sufficiently informed
about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new
Constitution at the referendum conducted in connection therewith, as said assemblies were merely
for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the
same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as
counsel for the respondents for comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were considered motions to dismiss
which were set for hearing and extensively argued. Thereafter both parties submitted their notes and
memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as
follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or
is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending
process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs
prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an
act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question
presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a
logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the
people by putting it into practical operation, any question regarding its validity should be foreclosed
and all debates on whether it was duly or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and
that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted
against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal
effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly
contrived, what is sought to be invalidated is the new Constitution itself the very framework of the
present Government since January 17, 1973. The reason is obvious. The Presidential decrees set
up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102
simply announced the result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running on its tracks normally
and apparently without obstruction in the form of organized resistance capable of jeopardizing its
existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation to divisive controversies that may totally
destroy the social order which the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution has taken deep root and the
people are happy and contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have
done likewise. The members of the Congress did not meet anymore last January 22, 1973, not
because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The courts, except the Supreme Court by
reason of these cases, have administered justice under the new constitution. All government offices
have dealt with the public and performed their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its
assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The situation in which this
Court finds itself does not permit it to pass upon the question whether or not the new Constitution
has entered into force and has superseded the 1935 Constitution. If it declares that the present
Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing
organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in
these cases when it would have no other choice but to uphold the new Constitution as against any
other one? In the circumstances it would be bereft of judicial attributes as the matter would then be
not meet for judicial determination, but one addressed to the sovereign power of the people who
have already spoken and delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in the face of reason and pounding one's bare
head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly
pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that,
submission of the people thereto by the organization of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slow in nullifying a Constitution claimed to have been adopted not in accordance with
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70
Neb. 211; 97 N.W. 347].
In , , the Court said:
Miller vs. Johnsonsupra
... But it is a case where a new constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it; important rights exist by virtue of it;
persons have been convicted of the highest crimes known to the law, according to its provisions; the
political power of the government has in many ways recognized it; . We need not consider the
validity of the amendments made after the convention reassembled. . (Emphasis supplied)
and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our stateIf the making of
them was in excess of its power, yet as the entire instrument has been recognized as valid in the manner suggested, it would be equally an
abuse of power by the judiciary, and violative of the rights of the people, who can and properly should remedy the matter, if not to their
liking, if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state
In , , the Court said:
Smith vs. Goodsupra
It is said that a state court is forbidden from entering upon such an inquiry , because the judicial
power presupposes an established government, and if the authority of that government is annulled
and overthrown, the power of its courts is annulled with it; therefore, if a state court should enter
upon such an inquiry, come to the conclusion that the government under which it acted had been
displaced by an opposing government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it decides at all, it must necessarily
affirm the existence of the government under which it exercises its judicial powers. (Emphasis
supplied)
when applied to a new constitution, and not an amendment
These rules are all traceable to , 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
Luther vs. Borden
Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and appointing judges to expound and administer them. The acceptance of the judicial
office is a recognition of the authority of government from which it is derived. And if the authority of
the government is annulled and overthrown, the power of its courts and other officers is annulled
with it. And if a State court should enter upon the inquiry proposed in this case, and should come to
conclusion that the government under which it acted had been put aside and displaced by an
opposing government it would cease to be a court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis
of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by
this Court would smack of plain political meddling which is described by the United States Supreme
Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it
would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals
and realize that the question before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity (Taada vs. Cuenco,
G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the
Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs.
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of government", or when there is "the
potentiality of embarrassment from multifarious pronouncements by various departments on one
question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the
"Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in , 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
Baker vs. Carr
The Court's authority possessed neither of the purse nor the sword . ..." (Emphasis supplied)
ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in
fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The
new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis
and protection and only the cynics will deny this. This Court should not in the least attempt to act as
a super-legislature or a super-board of canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the new Constitution. The sober realization
of its proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping with the preservation of our democratic tradition
than the blatant declamations of those who wish the Court to engage in their brand of activism and
would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this
Court on January 22, 1973
1
, I held the view that this issue could be properly resolved by this Court, and that it was in the public
interest that this Court should declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in
those cases, and so the Court, as a body, did make any categorical pronouncement on the question of
whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one
who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should
not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that
proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that
we have mentioned because that issue is a political question that cannot be decided by this Court.
This contention by the Solicitor General is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people in their sovereign capacity or in regard
to which full discretionary authority has been delegated to the legislative, or to the executive, branch
of the government.
2
The courts have the power to determine whether the acts of the executive are authorized by the
Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather restraining, power over the two
other departments of the government. Each of the three departments, within its proper constitutional
sphere, acts independently of the other, and restraint is only placed on one department when that sphere
is actually transcended. While a court may not restrain the executive from committing an unlawful act, it
may, when the legality of such an act is brought before it in a judicial proceeding, declare it to be void, the
same as it may declare a law enacted by the legislature to be unconstitutional.
3
It is a settled doctrine that
every officer under a constitutional government must act according to law and subject to its restrictions,
and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling
power of the people, acting through the agency of the judiciary. It must be remembered that the people
act through the courts, as well as through the executive or the legislature. One department is just as
representative as the other, and judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official actions
4
. In the case of Gonzales v.
Commission on Elections
5
, this Court ruled that the issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the Constitution is not a political question and is therefore
subject to judicial review. In the case of Avelino v. Cuenco
6
, this Court held that the exception to the rule
that courts will not interfere with a political question affecting another department is when such political
question involves an issue as to the construction and interpretation of the provision of the constitution.
And so, it has been held that the question of whether a constitution shall be amended or not is a political
question which is not in the power of the court to decide, but whether or not the constitution has been
legally amended is a justiciable question.
7

My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States where, after all, our constitutional system has been
patterned to a large extent made me arrive at the considered view that it is in the power of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the requirements
prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had
been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases,
before Us involve a political, or a judicial, question. I fully concur with his conclusion that the
question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
"Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for the ratification
as provided in the Constitution.
This Court, in the case of , L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice
Barredo, said:
Tolentino vs. Commission Elections
"The Constitutional Convention of 1971, as any other convention of the same nature, . This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of revolution against an existing government or of a bloodless seizure of
power . As to such kind of conventions, it is absolutely true that the convention is completely without
restraint and omnipotent all wise, and it as to such conventions that the remarks of Delegate Manuel
Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current convention came into being only because it was
called by a resolution of a joint session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution ... ."
owes its existence and all its authority and power from the existing Constitution of the Philippinesa la
coup d'etat
xxx xxx xxx
"As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are . Now we
hold that even as to its latter ."
all subject to all the provisions of the existing Constitutiontask of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution proposed by
the 1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of
the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of the sovereign power of the
people. In common parlance, an election is the act of casting and receiving the ballots, counting
them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and substantially in the manner and with
the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby or electors pass on various public matters submitted to them the
election of officers, national, state, county, township the passing on various other questions
submitted for their determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of
Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
qualified voters
"Election" is expression of choice by of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720,
in Words and Phrases, Permanent Edition, p. 234).
voters
"The right to vote may be exercised only on compliance with such statutory requirements as have
been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
"Sec. 2. . All elections of public officers except barrio officials and plebiscites shall be conducted
in the manner provided by this Code."
Applicability of this Act
"Sec 99. . In order that a qualified voter may vote in any regular or special election or in any
plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal
district in which he resides: Provided, that no person shall register more than once without first
applying for cancellation of his previous registration." (Emphasis supplied). (Please see also
Sections 100-102, Election Code of 1971, R.A. No. 6388)
Necessity of registration to be entitled to vote
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether the vote for or against a proposed Constitution. The election as
provided by law should be strictly observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed through the ballot in a manner
that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands a
well-ordered society require. The rule of law must prevail even over the apparent will of the majority
of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the
rule of law, public questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an amendment to the
Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the constitution, it must not be
understood that term necessarily includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional amendment must be answered
a vote, the determination of it rests with those who, by existing constitution, are accorded the right of
suffrage. But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution should be
abrogated and a new one adopted, by the whole mass of people in a state acting through
representatives not chosen by the "people" in political sense of the term, but by the general body of
the populace, the movement would be extra-legal." (BIack's Constitutional Law, Second Edition, pp.
47-48).
"The theory of our political system is that the ultimate sovereignty is in the people, from whom
springs all legitimate authority. The people of the Union created a national constitution, and
conferred upon it powers of sovereignty on certain subjects, and the people of each State created a
State government, to exercise the remaining powers of sovereignty so far as they were disposed to
allow them to be exercised at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and neither the officers of the State, nor
the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So.
2d. 761, 782).
"The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a
constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional principles in , , as quoted in the
original opinion, ante. The people themselves are bound by the Constitution; and, being so bound,
are powerless, whatever their numbers, to change or thwart its mandates, except through the
peaceful means of a constitutional convention, or of an amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. "The Constitution may be set
aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in
McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385,
387, On Rehearing).
Collier v. Friersonsupra
"The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must uphold and enforce the
Constitution as written until it is amended in the way which it provides for." , 15 Mont. 8, 37 Pac 840,
25 L.R.A. 560; , 106 Minn. 409, 119 N.W. 408; , 69 Cal. 499, 11 Pac. 3; , 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
Wood v. TookerMcConaughty v. StateOakland Paving Company v. HiltonUtter v. Mosely
"Provisions of a constitution regulating its own amendment, ... are not merely directory, but are
mandatory; and a strict observance of every substantial mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed amendment. These provisions are
as binding on the people as on the legislature, and the former are powerless by vote of acceptance
to give legal sanction to an amendment the submission of which was made in disregard of the
limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761,
782).
"It is said that chaos and confusion in the government affairs of the State will result from the Court's
action in declaring the proposed constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the
Court but will be the result of the failure of the drafters joint resolution to observe, follow and obey
the plain essential provisions of the Constitution. Furthermore, to say that, the Court disregards its
sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak
argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the
Court were to countenance the violations of the sacramental provisions Constitution, those who
would thereafter desire to violate it disregard its clear mandatory provisions would resort to the
scheme of involving and confusing the affairs of the State then simply tell the Court that it was
powerless to exercise one of its primary functions by rendering the proper decree to make the
Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not complied with. In the case of , 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the
elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the
expiration of the period for the filing of the same. However, on October 10, 1947, after the period for
the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on
November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the
withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that
Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance
of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal
of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.
Monsale v. Nico
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice because of the existence of martial law in our country. The same
ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that
voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the basis for proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of this Republic, and so it should
not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is
that "to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty
resides in the people. But the term must be understood in its constitutional meaning, and they are
"those persons who are permitted by the Constitution to exercise the elective franchise."
"people"
8
Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall
hold his office during a term of four years and, together with the Vice-President chosen for the same term,
shall be elected by direct vote of the people..." Certainly under that constitutional provision, the who elect
directly the President and the Vice-President are no other than the persons who, under the provisions of
the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II
of the 1935 Constitution which says "Sovereignty resides in the and all government authority emanates
from them", the "people" who exercise the sovereign power are no other than the persons who have the
right to vote under the Constitution. In the case of "people" peopleGarchitorena vs. Crescini
9
, this Court,
speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the
sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified
voters, in duly appointed elections held from time to time, by means of which they choose their officials for
definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise
of the powers of government." In the case of , Moya v. Del Fierro
10
this Court, speaking through Mr.
Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be the means by which the great
reservoir of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the ." And in the case of
, enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established
authorityAbanil v. Justice of the Peace of Bacolod
11
this Court said: "In the scheme of our present
republican government, the to be availed of by those possessing certain prescribed qualifications. The
people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain, charge him with the performance of a duty in the
nature of a public trust, and in that respect . This duty requires that the privilege thus bestowed
exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There
is no question, therefore, that when we talk of sovereign people, what is meant are the people who act
through the duly qualified and registered voters who vote during an election that is held as provided in the
Constitution or in the law.people are allowed to have a voice therein through the instrumentality of
suffrage constitute him a representative of the whole people
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed
along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence
Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act
No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution conforms
with the provisions of this act, it shall be submitted to the people of the Philippine Islands for
their ratification or rejection at to he held within months after the date of such certification, on
a date to be fixed by the Philippine Legislature and ordinances append thereto. Such election
shall be held in such manner as may prescribed by the Philippine Legislature to which the
return of the election shall be made. The Philippine Legislature shall certify the result to the
Governor-General of the Philippine Islands, together with a statement of the votes cast, and
a copy of said constitution ordinances. If a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression of the will of the people of the
Philippine Independence, and the Governor-General shall, within thirty days after receipt of
the certification from the Philippine Legislature, issue a proclamation for the of officers of the
government of the Commonwealth of the Philippine Islands provided for in the Constitution...
an electionat which election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution election
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word
"election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the
elections that were periodically held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at
which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution..." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode
of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be
done by holding an election, as the term "election" was understood, and practiced, when the 1935
Constitution as drafted. The alleged referendum in the citizens assemblies participated in by
persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ward captain, to the
municipal mayor, who in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the
enforcement and administration of all laws, relative to the conduct of elections was not only a
non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but
a downright violation of said constitutional provision. It would be indulging in sophistry to maintain
that the voting in the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by
overwhelming majority of all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their
duties apparently in observance of the provisions of the new Constitution. It could not be otherwise,
because the President of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his office had taken the steps to
implement the provisions of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed
their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their
option to serve in the interim National Assembly only one them took his oath of office; and of the 92
members of the House of Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out
of 110, took their oath of office, is an indication that only a small portion of the members of Congress
had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where
the affiant says that he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only , or by way of a precaution, making sure, that in the event the
new Constitution becomes definitely effective and the interim National Assembly convened, they can
participate in legislative work in the capacity as duly elected representatives of the people, which
otherwise they could not do if they did not manifest their option to serve, and that option had to be
made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of
course, if the proposed Constitution does not become effective, they continue to be members of
Congress under the 1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973.
Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of
them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December
31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and
18 members of the House of Representatives also did not opt to serve in the interim National
Assembly.
ex abundante cautela
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience,
accept the reported affirmative votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be
said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under the government that has
been existing since January 17, 1973 when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as it now exists, and as it
has existed since the declaration of martial law on September 21, 1972, regardless of what
Constitution is operative whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually prevailing in our country today
circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot
agree, therefore, with my worthy colleagues in the Court who hold the view that the people have
accepted the new Constitution, and that because the people have accepted it, the new Constitution
should be considered as in force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not
come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not
the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which
declares the proposed Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I
hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV
of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election
or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines
has reassured the nation that the government of our Republic since the declaration of martial law is
not a revolutionary government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted
to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of
the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law
and that the democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. I feel that if this Court would give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it
being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been
complied with, We will be opening the gates for a similar disregard of the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved the said new Constitution, although that approval
was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court I only wish to contribute my
humble efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in
the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is
simply an endeavor on my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our
land, because, as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a saving hand while yet there was time.
FERNANDO, dissenting:
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has
written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to
the petitions in these cases.
J.,
No question more momentous, none impressed with such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are far-reaching in its implications. As
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."
1
Strict accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of
the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the
ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have
been marked gains in the social and economic sphere, but given the premise of continuity in a regime
under a fundamental law, which itself explicitly recognizes the need for change and the process for
bringing it about,
2
it seems to me that the more appropriate course is this Court to give heed to the plea of
petitioners that the most serious attention be paid to their submission that the challenged executive act
fails to meet the test of constitutionality. Under the circumstances, with regret and with due respect for the
opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by
the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence,
subject, of course, to reservations insofar as it contains views and nuances to which I have in the past
expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not
be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected
to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of the day."
3
That is why there is this . In the United States as here, the exercise of the power of judicial review is
conditioned on the necessity that the decision of a case or controversy before it so requires. To repeat,
the Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They
can nullify the policy of others, they are incapable of fashioning their own solutions for social
problems."caveat
4
Nonetheless, as was stressed by Professors Black
5
and Murphy,
6
a Supreme Court by
the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but
also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy,
the political departments could seek the aid of the judiciary. For the assent it gives to what has been done
conduces to its support in a regime where the rule of law holds sway. In discharging such a role, this
Court must necessarily take in account not only what the exigent needs of the present demand but what
may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack
of understanding of the dominant forces at work to seek a better life for all, especially those suffering from
the pangs of poverty and disease, by a blind determination to adhere to the . It would be tragic, and a
clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its
approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It
follows then that it does not suffice that recourse be had only to what passes for scholarship in the law
that could be marred by inapplicable erudition and narrow legalism. Even with due recognition, such
factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief
Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm
conviction that the institution of judicial review speaks too clearly for the point to be missed that official
action, even with due allowance made for the good faith that invariably inspires the step taken, has to
face the gauntlet of a court suit whenever there is a proper case with the appropriate parties.status quo
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would
seek a dismissal of these petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the government possesses powers
only. Essentially then, unless such an authority may either be predicated on express or implied grant
in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It
is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and controversies that call for
decision.
7
Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution
containing, as above noted, an explicit article on the subject of amendments, it would follow that the
presumption to be indulged in is that the question of whether there has been deference to its terms is for
this Court to pass upon. What is more, the Gonzales,
8
Tolentino
9
and Planas
10
cases speak unequivocally
to that effect. Nor is it a valid objection to this conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the very language of the controlling article, the two
vital steps are proposal and ratification, which as pointed out in , Dillon v. Gloss
11
"cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor."
12
Once an aspect thereof is viewed as
judicial, there would be no justification for considering the rest as devoid of that character. It would be for
me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this
Court were to accede to what is sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in .
Lansang v. Garcia
13
Thus: "The term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance,
as to which there has been a prior legislative or executive determination to which deference must be paid.
It has likewise been employed loosely to characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should
refer to such as would under the Constitution be decided by the people in their sovereign capacity or in
regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision
reached by the political branches whether in the form of a congressional act or an executive order could
be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity.
It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to
what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise
of judicial review could inquire into the question of whether or not either of the two coordinate branches
has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than
political."
14
The view entertained by Professor Dodd is not too dissimilar. For him such a term "is
employed to designate certain types of functions committed to the political organs of government (the
legislative and executive departments, or either of them) and not subject to judicial investigation."
15
After a
thorough study of American judicial decisions, both federal and state, he could conclude: "The field of
judicial nonenforceability is important, but is not large when contrasted with the whole body of written
constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or
governmental interests."
16
Nor was Professor Weston's formulation any different. As was expressed by
him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign
has set to be decided in the courts. Political questions, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has reserved to be settled by its own
extra-governmental action."
17
What appears undeniable then both from the standpoint of Philippine as
well as American decisions is the care and circumspection required before the conclusion is warranted
that the matter at issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of complexity
and importance, deserves to be pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel
18
of Yale and Professor Freund
19
of Harvard, both of whom in turn are unabashed admirers of Justice
Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a more active and positive role
that must be played by the United States Supreme Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that from the well nigh four decades of constitutionalism in
the Philippines, even discounting an almost similar period of time dating from the inception of American
sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an
approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro
M. Recto. He spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes of
democracy that the people at times place more confidence in instrumentalities of the State other than
those directly chosen by them for the exercise of their sovereignty." 20 It would thus appear that even
then this Court was expected not to assume an attitude of timidity and hesitancy when a constitutional
question is posed. There was the assumption of course that it would face up to such a task, without
regard to political considerations and with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, , People v. Vera
21
decided in 1937: "If it is ever necessary
for us to make vehement affirmance during this formative period of political history, it is that we are
independent of the Executive no less than of the Legislative department of our government
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it
and as we understand it."
22
The hope of course was that such assertion of independence impartiality was
not mere rhetoric. That is a matter more appropriately left to others to determine. It suffices to stake that
what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of
the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby
there is no invasion of spheres appropriately belonging to the political branches. For it needs to be kept in
kind always that it can act only when there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not approach
constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of
perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for
jural consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once
allowance made that for all its care and circumspection this Court manned by human beings fettered by
fallibility, nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous
pursuit of the task of assuring that the Constitution be obeyed is easy to understand. It has not in the past
shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional
requirements. Such is the teaching of a host of cases from Angara v. Electoral Commission
23
to . Planas v. Commission on Elections
24
It should continue to exercise its jurisdiction, even in the face
of a plausible but not sufficiently persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the
Solicitor-General and his equally able associates presents the whole picture. On the question of
judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of
guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial review is undemocratic."
25
He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise
respectable tree. It should be cut off, or at least kept pruned and inconspicuous."
26
His view was precisely the opposite. Thus: "The power of constitutional review, to be exercised by some
part of the government, is implicit in the conception of a written constitution delegating limited powers. A
written constitution would promote discord rather than order in society if there were no accepted authority
to construe it, at the least in case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The limitation and separation of
powers, if they are to survive, require a procedure for independent mediation and construction to
reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of
government."
27
More than that, he took pains to emphasize: "Whether another method of enforcing the
Constitution could have been devised, the short answer is that no such method developed. The argument
over the constitutionality of judicial review has long since been settled by history. The power and duty of
the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of
the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked,
'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' "
28
Nor
is it only Dean Rostow who could point Frankfurter, reputed to belong to the same school of thought
opposed to judicial activism, if not its leading advocate during his long stay in the United States Supreme
Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands
of judicial review. There is a statement of similar importance from Professor Mason: "In
Frankfurterremarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' " Stein v. New York
29
Professor Konefsky, like Dean Rostow, could
not accept characterization of judicial review as undemocratic. Thus his study of Holmes and Brandeis,
the following appears: "When it is said that judicial review is an undemocratic feature of our political
system, it ought also to be remembered that architects of that system did not equate constitutional
government with unbridled majority rule. Out of their concern for political stability and security for private
rights, ..., they designed a structure whose keystone was to consist of barriers to the untrammeled
exercise of power by any group. They perceived no contradiction between effective government and
constitutional checks. To James Madison, who may legitimately be regarded as the philosopher of the
Constitution, the scheme of mutual restraints was the best answer to what he viewed as the chief problem
in erecting a system of free representative government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself.' "
30

There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the subject evince at the most fears that the
American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust whenever appropriate to the decision of a case before them. That is why it has been correctly
maintained that notwithstanding the absence of any explicit provision in the fundamental law of the
United States Constitution, that distinguished American constitutional historian, Professor Corwin,
could rightfully state that judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of cases."
31
This is not to deny that there are those who would place the blame or the credit, depending upon one's
predilection, on Marshall's epochal opinion in . Marbury v. Madison
32
Curtis belonged to that persuasion.
As he put it: "The problem was given no answer by the Constitution. A hole was left where the Court
might drive in the peg of judicial supremacy, if it could. And that is what John Marshall did."
33
At any rate
there was something in the soil of American juristic thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It now
dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that exalted
position, could state in a lecture: "We are under a Constitution, but the Constitution is what the judges say
it is ... ."
34
The above statement is more than just an aphorism that lends itself to inclusion in judicial
anthologies or bar association speeches. It could and did provoke from Justice Jackson, an exponent of
the judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it
shall be what the judges say it is. How, did it come about that the statement not only could be but could
become current as the most understandable comprehensive summary of American Constitutional
law?"
35
It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest
American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has
come to be regarded as the unique feature of the American governmental system."
36
Let me not be
misunderstood. There is here no attempt to close one's eyes to a discernible tendency on the part of
some distinguished faculty minds to look askance at what for them may be inadvisable extension of
judicial authority. For such indeed is the case as reflected in two leading cases of recent vintage, , Baker
v. Carr
37
decided in 1962 and , Powell v. MacCormack
38
in 1969, both noted in the opinion of the Chief
Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the
American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut
very deep into the very being of Congress."
40
For him, the judiciary "ought not to enter this political
thicket." Baker has since then been followed; it has spawned a host of cases.
41
Powell, on the question of
the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested,
for many the very staple of what is essentially political, certainly goes even further than the authoritative
Philippine decision of , Vera v. Avelino
42
It does look then that even in the United States, the plea for
judicial self-restraint, even if given voice by those competent in the field of constitutional law, has fallen on
deaf ears. There is in the comments of respondents an excerpt from Professor Freund quoting from one
of his essays appearing in a volume published in 1968. It is not without interest to note that in another
paper, also included therein, he was less than assertive about the necessity for self-restraint and
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to
maintain the constitutional order, the distribution of public power, and the limitations on that power."
43
As
for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam
papers case,
44
he was less than insistent on the American Supreme Court exercising judicial self-
restraint. There are signs that the contending forces on such question, for some an unequal contest, are
now quiescent. The fervor that characterized the expression of their respective points of view appears to
have been minimized. Not that it is to be expected that it will entirely disappear, considering how dearly
cherished are, for each group, the convictions, prejudices one might even say, entertained. At least what
once was fitly characterized as the booming guns of rhetoric, coming from both directions, have been
muted. Of late, scholarly disputations have been centered on the standards that should govern the
exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law
School, Professor Wechsler advocated as basis for decision what he termed neutral principles of
constitutional law.
45
It has brought forth a plethora of law review articles, the reaction ranging from
guarded conformity to caustic criticism.
46
There was, to be sure, no clear call to a court in effect
abandoning the responsibility incumbent on it to keep governmental agencies within constitutional
channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has
been made for all factors, it nevertheless seems to me that the doctrine of political questions ought to be
very sharply confined to where the functional reasons justify it and that in a give involving its expansion
there should be careful consideration also of the social considerations which may militate against it. The
doctrine has a certain specious charm because of its nice intellectualism and because of the fine
deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be
allowed to grow as a merely intellectual plant."
47

It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of
the worth and significance of judicial review in the United States. I cannot resist the conclusion then
that the views advanced on this subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Taada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General,
possess the greater weight and carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of
course, the view not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of
its force in constitutional litigation,
48
if my reading of the events and the process that led to such proclamation, so clearly set forth in the
opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there was such
compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed
facts. Any other conclusion would, for me, require an interpretation that borders on the strained. So it has
to be if one does not lose sight of how the article on amendments is phrased. A word, to paraphrase
Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to borrow from Learned
Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met. There are American decisions,
49
and they are not
few in number, which require that there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme law, then its mandate must be
fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and every word
is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive
effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed
poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial
compliance is enough. A great many American State decisions may be cited in support of such a
doctrine.
50

Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to what could be considered words
of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when
the light of the previous legislation is thrown on it. In the first Commonwealth Act,
51
submitting to the Filipino people for approval or disapproval certain amendments to the original
ordinance appended to the 1935 Constitution, it was made that the election for such purpose was to "be
conducted in conformity with the provisions of the Election Code insofar as the same may be
applicable."
52
Then came the statute,
53
calling for the plebiscite on the three 1940 amendments providing
for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Senate and a
House of Representatives to take the place of a unicameral National Assembly,
54
reducing the term of the
President to four years but allowing his re-election with the limitation that he cannot serve more than eight
consecutive years,
55
and creating an independent Commission on Elections.
56
Again, it was expressly
provided that the election "shall be conducted in conformity with the provisions of the Election Code in so
far as the same may be applicable."
57
The approval of the present parity amendment was by virtue of a
Republic Act
58
which specifically made applicable the then Election Code.
59
There is a similar provision in
the legislation,
60
which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the
membership of the House of Representatives a maximum of one hundred eighty and assured the
eligibility of senators and representatives to become members of such constituent body without forfeiting
their seats, as proposed amendments to be voted on in the 1967 elections.
61
That is the consistent course
of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints
thus imposed would set limits to the Presidential action taken, even on the assumption that either as an
agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power
to specify the mode of ratification. On two vital points, who can vote and how they register their will,
Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this
Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised
Constitution as reflected in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply with the requirements
of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the Constitution,
62
then this Court cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive
in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the
nation as a whole constitutes the "single center of ultimate reference," necessarily the possessor of that
"power that is able to resolve disputes by saying the last word."
63
If the origins of the democratic polity
enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state could be
traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the
recognition of the nation as the separate political unit in public law is there the juridical recognition of the
people composing it "as the source of political authority."
64
From them, as Corwin did stress, emanate
"the highest possible embodiment of human will,"
65
which is supreme and must be obeyed. To avoid any
confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such
is not the case, however, once it is manifested, it is to be accepted as final and authoritative. The
government which is merely an agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of
regularity in the method employed to register its wishes is fatal in its consequences. Once the fact of
acceptance by people of a new fundamental law is made evident, the judiciary is left with no choice but to
accord it recognition. The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling,
they are not entirely bereft of persuasive significance. In ,
Miller v. Johnson
66
decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3,
1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing
a new constitution and the election of delegates. It provided that before any form of constitution made by
them should become operative, it should be submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the legislature, the preliminary steps having been
taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no
provision giving the legislature the power to require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until September following. When the convention reassembled, the
delegates made numerous changes in instrument. As thus amended, it was promulgated by the
convention of September 28, 1891, as the new constitution. An action was brought to challenge its
validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Holt
stated: "If a set of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its
work a nullity. This would be revolution, and this the courts of the existing government must resist until
they are overturned by power, and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a constitution has been made
and promulgated according to the forms of law. It is a matter of current history that both the executive and
legislative branches of the government have recognized its validity as a constitution, and are now daily
doing so. ... While the judiciary should protect the rights of the people with great care and jealousy,
because this is its duty, and also because; in times of great popular excitement, it is usually their last
resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being
perhaps equally dangerous; and especially where such momentous results might follow as would be likely
in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of
the convention."
67
In , Taylor v. Commonwealth
68
a 1903 decision, it was contended that the Virginia
Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the
opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly
called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of
the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution
of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the
Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution
ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as
the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its
provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of the United States. The
Constitution having been thus acknowledged and accepted by the office administering the government
and by the people of the state, and there being no government in existence under the Constitution of
1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question,
which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing
Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal
allegiance."
69

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the
revised Constitution has been accepted by the Filipino people. What is more, so it has been argued,
it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they
could allege that there was more than just mere acquiescence by the sovereign people. Its will was
thus expressed formally and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference. Nor is the fact that
Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored.
The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question
may be raised. This Court is to respect what had thus received the people's sanction. That is not for
me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than
what the courts do in election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the evidence flowing from the
conditions of peace and stability. There thus appears to be conformity to the existing order of things.
The daily course of events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the Senators, have signified
their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be
really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of
popular will did take place during a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free market of ideas. If it were
thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut
decision either way. One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by individuals with their personal
concerns uppermost in mind, worried about their immediate needs and captive to their existing
moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open
to any valid objection because in the final analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to
give expression to what was really in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is
forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed
brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is
not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For
there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted
with truth, especially in the field of social and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then too it could resolve what appeared to be
the deepening contradictions of political life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in democratic processes. It is not too much to
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values
out of which democracy grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era
that is the present. That is why for some what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority, there
is not, while these lawsuits are being further considered, the least interference, with the executive
department. The President in the discharge of all his functions is entitled to obedience. He remains
commander-in-chief with all the constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of
their ways. They are free to act according to its tenets. That was so these past few weeks, even
petitions were filed. There was not at any time any thought of any restraining order. So it was before.
That is how things are expected to remain even if the motions to dismiss were not granted. It might
be asked though, suppose the petitions should prevail? What then? Even so, the decision of this
Court need not be executory right away. Such a disposition of a case before this Court is not novel.
That was how it was done in the Emergency Powers Act controversy.
70
Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions
that cannot stand the test of actuality. What is more, it may give the impression of reliance on what
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. That may be so, but I find it impossible to transcend what for me are the
implications of traditional constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed away by the advancing
tides of the present. The introduction of novel concepts may be carried only so far though. As
Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the
primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion
that remains."
71
Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their
validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon
ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be
exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no
such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of
constitutional law not to operate.
TEEHANKEE, dissenting:
Even with full realization then that the approach pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the basic premises of a constitutional democracy,
as I understand them and as set forth in the preceding pages, compel me to vote the way I did.
J.,
The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues
of the cases at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is
the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has
been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, or parts
thereof, "shall be valid as part of this Constitution when approved by a of the at an election at which
the amendments are to the for their ."
in toto majorityvotes castsubmitted peopleratification
1

A necessary corollary issue is whether the purported ratification of the proposed Constitution as
signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that "(T)his Constitution shall take immediately upon its
by a of the in aand except as herein provided, shall supersede the Constitution of Nineteen hundred
and thirty-five and all amendments thereto."
ratificationmajorityvotes cast plebiscite called for the purpose
2

Respondents contend that "(A)lthough apparently what is sought to be annulled is
Proclamation No. 1102, what petitioners really seek to invalidate is the new Constitution",
and their actions must be dismissed, :
because
"the Court may inquire into the of the" which is in character" and that "what is sought to be
invalidated is an act of the President but of the people;
not validity procedure for ratification"political not
"(T)heof the new Constitution by an overwhelming majority of the votes cast as in
Proclamation No. 1102 is on the courts;
fact of approval declared and certified conclusive
"Proclamation No. 1102 was issued by the President in the exercise of legislative power
under martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the
Constitutional Convention;"
"alleged , such as absence of , enfranchisement of persons less than 21 years, (by) the
are matters by Article XV of the 1935 Constitution"; (sic)
defectssecret votingnon supervision Comelec not required
", whatever defects there might have been in the procedure are overcome and (and ) by
the"; and
after ratificationmooted muted fact of ratification
"(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the
ratification of the new Constitution must nonetheless be respected. For the procedure
outlined in Article XV was intended to be exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry ... ."
not
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102
would really be "invalidating the new Constitution", the terms and premises of the issues have to be
defined.
Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely of the fact that
the 1973 Constitution has been and has come into force.
declaratoryratified
4

The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been consistently
held by the Court in the :Gonzales
5
and Tolentino
6
cases.
In the case, this Court emphasized "that the provisions of Section 1 of Article XV of the
Constitution, dealing with the the fundamental law are binding upon the Convention and the other
departments of the government. It must be added that ... they are no less upon the."
Tolentino procedure or manner of amendingbinding people
7

In the same case, this Court further proclaimed that "as long as any amendment is formulated and
submitted under the aegis of the present Charter, any proposal for such amendment which is not in
conformity with the , and of the for effecting amendments, cannot receive the sanction of this
Court."Tolentinoletterspirit intent Charter
8

As continues to be held by a majority of this Court, proposed amendments to the Constitution "should
be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated
in only by qualified and duly registered voters"
9
and under the supervision of the Commission on
Elections.
10

Hence, if the Court declares Proclamation 1102 null and void because , the purported ratification of the
proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory
requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of ratification thereof by means of the
Citizens Assemblies referendums does pass the and that the proposed new Constitution has
constitutionally come into existence.on its facenot constitutional test not
Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as
having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and
the question of whether "confusion and disorder in government affairs would (not) result" from a
judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf
of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases,
11
wherein the Court in its Resolution of September 16, 1949 after judgment was initially obtained on
August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency
powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI,
section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when
Congress met in its first regular session on May 25, 1946.not
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen
under executive orders "issued in good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced extensive effects on the life of the nation"
in the same manner as may have arisen under the bona fide acts of the President now in the
honest belief that the 1972 Constitution had been validly ratified by means of the Citizens
Assemblies referendums and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and innocent parties thereby
avoided as follows:
Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671, are
null and void. It must be borne in mind that these executive orders had been issued in good faith and
with the best of intentions by three successive Presidents, and some of them may have already
produced extensive effects in the life of the nation. We have, for instance, Executive Order No. 73,
issued on November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive
Order No. 86, issued on January 7, 1946, ; Executive Order No. 89, issued on January 1, 1946,
reorganizing Courts of First Instance; Executive Order No. 184, issued on November 19, 1948,
controlling rice and palay to combat hunger; and other executive orders appropriating funds for other
purposes. The consequences of a of all these executive orders will be unquestionably And I hold
that before nullifying them, should be , as for instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their purposes have already been accomplished entirely or
partially, and in the last instance, to what extent; acquiescence of litigants; officers; acts and
contracts of parties acting in good faith; etc. It is my opinion that each executive order must be
viewed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to to public interest and innocent parties.
per seamending a previous order regarding the organization of the Supreme Courtblanket
nullification serious and harmful.other important circumstancesinquired intode facto avoid harm
12

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null
and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter."
13

Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for
annulment despite the great difficulties and possible "harmful consequences" in the following
passage, which bears re-reading:
However, now that the holding of a special session of Congress for the purpose of remedying the
nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring
that these two executive orders were issued without authority of law.
While in voting for a temporary deferment of the judgment I was moved by the belief that positive
compliance with the Constitution by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite deferment will produce the opposite
result because it would legitimize a prolonged or permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the Constitution, would be given permanent life,
opening the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring opinion, would come to pass
should the said executive orders be immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session should the need for one arise,
and in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of
life in this country, if each of the great branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy.
14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the
rental and export control executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to respectively.' "
15

It should be duly acknowledged that the Court's task of discharging its duty and responsibility has
been considerably lightened by the President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution.
It can and will probably determine the validity of this Constitution. I did not want to talk about this
because actually there is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint additional members to the Supreme
Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power."
16

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that
the questions of whether the submission of the proposed constitutional amendment of the State
Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political questions, we may echo the words therein of
Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged."
17

In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are
faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that the
Constitution is a "" save in the particular mode and manner prescribed therein by the people, who, in
Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands as
well"
superior paramount law, unchangeable by ordinary means
18
in the exercise of their sovereign will a liberal
and flexible stand that would consider compliance with the constitutional article on the amending process
as merely directory rather than mandatory.or
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended or otherwise "by approval by a majority of the an at which the amendments are submitted
to the people for their ratification",
in totoexclusivelyvotes castelection
19
participated in by and duly voters of age or
over only qualifiedregisteredtwenty-one years
20
and duly by the Commission on Elections, supervised
21
in
accordance with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a of said requirements on the theory urged by
respondents that "the procedure outlined in Article XV was intended to be of other procedures
especially one which contemplates popular and direct participation of the citizenry",
disregardnot exclusive
22
that the constitutional age and literacy requirements and other statutory
safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested,
if not prescribed, by the people (through the Citizens Assemblies) themselves",
23
and that the Comelec is
constitutionally "mandated to oversee ... elections (of public officers) and plebiscites." not
24

To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of
Marbury vs. Madison
25
the U.S. Supreme Court's power of judicial review and to declare void laws
repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall
expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the
Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts on the part
of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark
case of ,
Angara vs. Electoral Commission
26
"(T)he Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to
direct the course of government along constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations of good government and restrictions embodied in our
Constitution are real as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which the instrument secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of
McCulloch vs. Maryland
27
the "climactic phrase,"
28
"we must never forget that it is a we are expounding,"
termed by Justice Frankfurter as "the single most important utterance in the literature of constitutional
law most important because most comprehensive and comprehending." constitution
29
This enduring
concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino,
wherein we rejected the contentions on the Convention's behalf "that the issue ... is a political question
and that the Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts."
30

This Court therein made its choice of strictly requiring(which really includes substantial) compliance
with the requirements of the .
unequivocal faithful mandatoryamending process
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an
advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend
Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed in the future ... on other portions of the
amended section", this Court stated that "the constitutional provision in question (as proposed)
presents no doubt which may be resolved in favor of respondents and intervenors. We do not
believe such doubt can exist only because it is urged that the sought to be achieved is to be .
Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M. Recto, let
those who would put aside, invoking grounds at best controversial, any mandate of the fundamental
law purportedly in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the precedent and continue
the destruction of the Constitution, making those who laid down the precedent of justifying deviations
from the requirements of the Constitution the victims of their own folly."
enddesired
31

2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are subject
to all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of . 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 be undertaken with the same and 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 and of the lives
of within the country and those subject to its sovereignty, every degree of care is taken in preparing
and drafting it. A constitution worthy of the people for deliberation and study. It is obvious that
correspondingly, 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 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, , in
regard to the process of their . And when such limitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of any subsequent convention to claim that they
may ignore and disregard such conditions because they are powerful and omnipotent as their
original counterparts.
allArticle XVnotease facility lives, fortunes,future every other conceivable aspectall the peopleany
amendmentinsulatedmade so by the people themselvesamendment
32

3. This Court in likewise formally adopted the doctrine offirst advanced in
Tolentino proper submission Gonzales vs. Comelec
33
, thus:
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only but for anof the nature of
amendment as well as its to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where the Convention hardly started
considering the merits of hundreds, if not thousands, proposals to amend the existing Constitution,
to present to people any single proposal or a few of them cannot comply with this requirement. We
are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a
plebiscite or "election" wherein the people are in the dark as to frame of reference they can base
their judgment on. We reject the rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed
plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, , '.' "
sufficient time ample basis intelligent appraisal per serelationsuprano proper submission
34

4. Four other members of the Court
35
in a separate concurrence in , expressed their "essential agreement" with Justice Sanchez' separate
opinion in on the need for " (and) " as " requirements that must be met in order that there can be a to the
people of a proposed constitutional amendment" thus:TolentinoGonzales fair submissionintelligent
rejectionminimum proper submission
... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of the provisions to
be amended, and the proposed amendments and the meaning, nature and effects thereof. By this,
we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and another is ratification. There be.
must fair submission, intelligent consent or rejection
36

They stressed further the need for and , conformably to the intendment of Article XV, section 1 of the
Constitution, in this wise:
undivided attention, sufficient informationfull debate
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old, so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If
I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come
1973?
The above are just samplings from here, there and everywhere from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot except as the questions are .
debated fully, pondered upon purposefully, and accorded undivided attention
Scanning the contemporary scene, we say that the people are not, and by election time will not be,
of the of the proposed constitutional amendment. They have not been afforded to deliberate thereon
conscientiously. They have been and are effectively distracted from a of the proposed amendment
by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in
tranquility the need for and the wisdom proposed amendment.
sufficiently informedmeaning, nature and effects ample timefull and dispassionate consideration of the
merits and demerits
37

5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending
process "in favor of allowing the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule
of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus . Hence, in construing said section, We must read it as if thehad said, 'This
Constitution may be , but it is that the amendment must beand to Us for ratification .' ... Accordingly,
the real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very idea of from the
fundamental law is and ; rather, it is whether or not the provisional nature of the proposed
amendment and the to thefor ratification or rejection with the themselves in such regard, as
expressed in, the Constitution itself.
ordained by the people people amendedour will proposed submitted only in the manner herein
provideddepartinganachronistic in the realm of constitutionalism repugnant to the essence of the rule of
lawmanner of its submission peopleconform mandate of the people
38

6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and
contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding
this case to be carried astray by considerations other than the of the of and of the applicable
provisions of the . 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 that .
imperatives rule law Constitutiondischarge duty
39

7. The Chief Justice, in his separate opinion in concurring with this Court's denial of the motion for
reconsideration, succinctly restated this Court's position on the fundamentals, as follows:
Tolentino
On the premature submission of a partial amendment proposal, with a "temporary provisional or
tentative character": "... a partial amendment would deprive the voters of the context which is
usually necessary for them to make a of the issue submitted for their ratification or rejection. ... Then,
too, the submission to a plebiscite of a partial amendment, without a , is fraught with possibilities
which may jeopardize the social fabric. For one thing, it opens the door to wild speculations. It offers
ample opportunities for overzealous leaders and members of opposing political camps to unduly
exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breedand
create . As a consequence, it is bound to unduly strain the people's faith in the soundness and
validity of democratic processes and institutions.
reasonably intelligent appraisaldefinite frame of reference false hopes wrong impressions
On the plea to allow submission to the sovereign people of the "fragmentary and incomplete"
proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also,
advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as
the, and the partial amendment involved in this case is being submitted to them. The issue before Us
is whether or not said partial amendment be to the people for ratification "in a plebiscite coincide with
the local elections in November 1971," and particular issue will be submitted to the people. What is
more, the Constitution does permit its submission to the people. The question sought to be settled in
the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age.
people are sovereignmay validly submitted thisnot not
On a "political" rather than "" approach: "Is this approach to the problem too "?" This term has
possible connotations. It may mean , which in the case at bar is the of the land. On point, suffice it to
say that, in compliance with the specific man of such Supreme Law, the members of the Supreme
Court taken the requisite "oath to support and defend the Constitution." ... Then, again, the term ""
may be used to suggest inversely that the somewhat strained interpretation of the Constitution being
urged upon this Court be or, at least, overlooked, upon the theory that the partial amendment on
voting age is badly needed and reflects the will of the people, specially the youth. This course of
action favors, in effect, adoption of a, inasmuch as the advisability of the amendment and an
appraisal of the people's feeling thereon. In fact, apart from the obvious message of the mass media,
and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as well as letterhead of some
sectarian educational institutions, generally stating that the writer is 18 years of age and urging that
she or he be allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in the case at bar.
legalisticlegalisticstrict adherence to the lawSupreme Law legalistictolerated political approach political
matters
As above stated, however, the of the amendment and thethereof are political questions beyond our
province. In fact, respondents and the intervenors originally maintained that We have no jurisdiction
to entertain the petition herein, upon the ground that the issue therein raised is a political one. Aside
from the absence of authority to pass upon political question, it is obviously improper and unwise for
the bench to develop into such questions owing to the danger of in politics, more likely of a partisan
nature, and, hence, of impairing the image and the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
wisdom popularity getting involved
Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the
people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of
drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not exactto theset forth in the Constitution and compliance
with its provisions were not obligatory. If we, in effect, approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of the good intention with which Resolution No.
1 is animated, the Court would thereby become the of the of the Convention and thus be involved in
a question essentially political in nature.
faithful adherence fundamental tenets Judge good or bad intentions
This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of
judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political expediency or the advancement
of the bid for power of a given political party. Upon the other hand, statesmanship is the expression
usually availed of to refer to high politics or politics on the highest level. In any event, politics,
political approach, political expediency and statesmanship are generally associated, and often
identified, with the dictum that "." I earnestly hope that the administration of justice in this country and
the Supreme Court, in particular, will adhere to or approve or indorse such dictum."
the end justifies the means
40

Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the
submission of the proposed amendment lowering the voting age to the plebiscite on November 8,
1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in so far as "to allow young people
who would be governed by the Constitution to be given a say on what kind of Constitution they will
have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the Constitution must seek a
valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution"
41
so that there may be "submitted, not piece-meal, but by way of complete and final amendments as an
integrated whole (integrated either with the subsisting Constitution or with the new proposed
Constitution)..."
9. The universal validity of the vital constitutional precepts and principles above-enunciated can
hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals
for amendments of particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or ,
and in the latter case would rise to an entirely new Constitution. Where this Court held in that
"amendment of the Constitution is of no less importance than the whole Constitution itself and
perforce must be conceived and prepared with as much care and deliberation", it would appeal that
the reverse would equally be true; which is to say, that the adoption of a whole new Constitution
would be of no less importance than any particular amendment and therefore the necessary care
and deliberation as well as the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be against precipitate and hasty actions
motivated by more or less passing political moods or fancies" must necessarily equally apply thereto.
in totoTolentinoany insulated
III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the
amending process "by approval by a majority of the votes cast at an election at which the (duly
proposed) amendments are submitted to the people for their ratification."
only
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the
right of suffrage may speak the " of age or over with one year's residence in the municipality where
they have registered.
will of the body politic", viz, qualified literate voters twenty one years
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an Commission on Elections with "" for the purpose of
"insuring free, orderly and honest elections" and ascertaining the true will of the electorate and
more, as ruled by this Court in , in the case of proposed constitutional amendments, insuring to the
electorate of such proposals.
independentexclusive chargeTolentinoproper submission
42

2. A Massachussets case
43
with a constitutional system and provisions analogous to ours, best defined the uses of the term and
who are synonymous with the qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body politic can be expressed.""people"
as a body politic"people" in the political sense
It was pointed out therein that "(T)he word 'people' may have somewhat varying significations
dependent upon the connection in which it is used. In some connections in the Constitution it is
confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and educated, but also those
who are wholly or in part dependents and charges upon society by reason of immaturity, mental or
moral deficiency or lack of the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness,
except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed by a
constitution and common laws in a "social compact ... for the common good" and in another sense of
"people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense,
"people" comprises many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and protection established by the
Constitution. '' in is with the . But it is obvious that 'people' cannot be used with this broad meaning of
political signification. The 'people' in this connection means that part of the entire body of inhabitants
who under the Constitution are intrusted with the exercise of the sovereign power and the conduct of
government. The means those who under the existing Constitution possess the right to exercise the
elective franchise and who, while that instrument remains in force unchanged, will be the through
which the of the can be . ' formust be considered with .' "
Peoplethis aspectcoextensivebody politic'people' in the Constitution in a practical sensesole
organswill body politicexpressedPeople' political purposes synonymous qualified voters
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political
power, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulse of mere
majorities."
44

From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a
majority of the at an election at which the amendments are submitted to the for their ratification", it
seems obvious as above-stated that "" as therein used must be considered synonymous with "" as
enfranchised under Article V, section 1 of the Constitutionsince only "" who are qualified voters can
exercise the right of suffrage and cast their votes.
votes cast peoplepeoplequalified voters people
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the will of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional requirements laid down for the process of amending or in part the supreme law of
the land.
in toto
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio
plebiscites thus: "SEC. 6. .A plebiscite may be held in the barrio when authorized by a majority vote
of the members present in the barrio assembly, there being a , or when called by at least four
members of the barrio council: , That no plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating
the date, time and place thereof, the questions or issues to be decided, action to be taken by the
voters, and such other information relevant to the holding of the plebiscite."
Plebiscite quorumProvided, however
46

As to voting at such barrio plebiscites, the Charter further requires that "(A)ll barrio assembly
members may vote in the plebiscite. Voting procedures may be made either as in regular elections,
and/or by the voters ."
duly registeredqualified to votein writingdeclarationto the board of election tellers
47

The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members is necessary."
registered in the list of the barrio secretary
48

The in such barrio plebiscites and elections of barrio officials
qualifications for voters
49
comply with the suffrage qualifications of Article V, section 1 of the Constitution
and provide that "(S)EC. 10. .Every citizen of the Philippines, of age or over, , who has been a resident of
the barrio during the six months immediately preceding the election, , who is not otherwise disqualified,
may vote or be a candidate in the barrio elections."Qualifications of Voters and Candidates twenty one
years able to read and writeduly registered in the list of voters by the barrio secretary
50

IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the
above-cited constitutional articles have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution
itself
51
has been called or held, there cannot be said to have been a valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just five
provinces
52
between the reports as certified by the Department of Local Governments and the reports as directly
submitted by the provincial and city executives, which latter reports respondents disclaimed as not final
and complete or as not signed; inter alia
53
whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National Assembly provided in Article
XVII, section 1 thereof,
54
may be considered as valid; the allegedly huge and uniform votes reported; and
many others.
3. These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. Under Article XV,
section 1 of our Constitution, amendments thereto may be ratified only in the way therein provided,
i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission
on Elections, and which is participated in only by qualified and duly registered voters. In this manner,
the safeguards provided by the election code generally assure the true ascertainment of the results
of the vote and interested parties would have an opportunity to thresh out properly before the
Comelec all such questions in pre-proclamation proceedings.
one
4. At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the
mandatory amending process required by the (1935) Constitution was not observed, the cases at
bar need not reach the stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum resultssince the
purported ratification is rendered nugatory by virtue of such non-observance.

5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of
the Constitutional Convention"
55
under Resolution No. 5844 approved on November 22, 1973, and "as agent of the Convention the
President could devise other forms of plebiscite to determine the will of the majority vis-a-vis the
ratification of the proposed Constitution."
56

The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency"
was that the President issue a decree precisely calling afor the ratification of the proposed new
Constitution on an appropriate date, under the charge of the , and with a reasonable period for an
information campaign, as follows:
plebiscite Comelec
12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor, and that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on Elections for implementation."
He suggested that in view of the expected approval of the final draft of the new Constitution by the
end of November 1972 according to the Convention's timetable, it would be necessary to lay the
groundwork for the appropriate agencies of the government to undertake the necessary preparation
for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because
section 15, Article XVII on the Transitory Provision, which had already been approved on second
and third readings, provided that the new constitution should be ratified in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the provision referred to didinclude
the and that, moreover, the resolution was intended to serve formal notice to the.
not appropriation of funds for the plebiscite President and the Commission on Elections to initiate the
necessary preparations
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a was necessary in order to properly apprise
the people of the implications and significance of the new charter. Delegate Duavit agreed, adding
that this was precisely why the resolution was modified to give the President the discretion to choose
the most appropriate date for the plebiscite.
reasonable period for an information campaign
12.5 Delegate Laggui asked whether a formal communication to the President informing him of the
adoption of the new Constitution would not suffice considering that under Section 15 of the
Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to
the proper authorities to.
prepare everything necessary for the plebiscite
12.6 In reply to Delegate Britanico, Delegate Duavit stated that the for the holding of the would be in
coordination with the President.
mechanics plebiscitelaid down by the Commission on Elections
12.7 Delegate Catan inquired if such mechanics for the plebiscite could in order to allow the people
to assemble peaceably to discuss the new Constitution. Delegate Duavit suggested that the
Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter.
include a partial lifting of martial law
12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one
more interpellant and that a prior reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a
resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the
purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was
approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoez moved for nominal voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands.
57

ANTONIO, concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I
It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate measures
legislative in character, for the successful prosecution of such objectives. For the "President's power
as Commander- in-chief has been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national power
and the capacity of the President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The President: Office &
Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis government in this
country. In terms of power, crisis government in a constitutional democracy entails the concentration
of governmental power. "The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of
crisis... The power of the state in crisis must not only be concentrated and expanded, it must be
freed from the normal system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of constitutional restraints"
(Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is channeled
through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction,
and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice
Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all rights entrusted by the
constitution to its care." The marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in time of emergency defy precise
definition s.
since their extent and limitations are largely dependent upon conditions and circumstance
2. The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in times of crisis, rather
than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with
his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary
measures which he tookthe calling of volunteers for military service, the augmentation of the regular
army and navy, the payment of two million dollars from unappropriated funds in the Treasury to
persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence",
the blockade of southern ports, the suspension of the writ of , the arrest and detention of persons
"who were represented to him" as being engaged in or contemplating "treasonable practices"all this
for the most part . Those actions were justified by the imperatives of his logic, that the President
may, in an emergency thought by him to require it, partially suspend the constitution. Thus his
famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest
that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an
initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war
emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have
shown conclusively that in meeting the domestic problems as a consequence of a great war, an
indefinite power must be attributed to the President to take emergency measures. The concept of
"emergency" under which the Chief Executive exercised extraordinary powers underwent correlative
enlargement during the first and second World Wars. From its narrow concept as an "emergency" in
time of war during the Civil War and World War I, the concept has been expanded in World War II to
include the "emergency" preceding the war and even after it. "The Second World War" observed
Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin
Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were
there to be sure, most of them from the First World War, but they proliferated amazingly. What is
more, Roosevelt took his first step toward war some fifteen months before our entrance into . This
step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great
Britain. The truth is, they were not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did was (Article IV, Section 3) and ." (Corwin
& Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office
and Powers, 1948.)
habeas corpus without the least statutory authorizationshooting warto take over for the nonce Congress's power to dispose of property
of the United States to repeal at least two statutes
The creation of public offices is a power confided by the constitution to Congress. And yet President
Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause
created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the
basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert his civil and military as well
as his moral authority to keep the defense efforts of the United States a going concern" as well as "to
obtain supplies for which Congress has appropriated money, and which it has directed the President
to obtain." On a similar justification, other plants and industries were taken over by the government.
It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153,
[1952]), the Supreme Court of the United States did not sustain the claims that the President could,
as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order the
seizure of most of the country's steel mills. The Court however did not face the naked question of the
President's power to seize steel plants in the absence of any congressional enactment or
expressions of policy. The majority of the Court found that this legislative occupation of the field
made untenable the President's claim of authority to seize the plants as an exercise of inherent
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the absence of restrictive
legislation, , to deal with emergencies that he regards as threatening the national security. The same
view was shared with vague qualification by Justices Frankfurter and Jackson, two of the concurring
Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went
further by quoting with approval a passage extracted from the brief of the government in the case of
., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President
to order withdrawals from the public domain not only without Congressional sanction but even
contrary to Congressional statutes.
a residual or resultant power above or in consequence of his granted powersUnited States vs. Midwest Oil Co
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the
view that the President in times of a grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin and Koenig,
"Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency
conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to
fill needed gaps in the law, or even to supersede it so far as may be requisite to realize ." (Corwin
and Koenig, The Presidency Today).
the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to
contend that we are not faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been expanded to meet the exigencies
of new dangers and crisis that directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting
the realization of constitutional limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from
which the New Deal may be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures
the Court invoked the justification of 'emergency.' In the final result constitutional practices of
wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis." (Corwin, . p. 318.)
Ibid
The same view was expressed by Rossiter thus:
The second crisis is, when the authority of a constitutional government is resisted openly by large
numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are
bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in
modern times as sanctioning emergency action by constitutional governments, is . The economic
troubles which plagued all the countries of the world in the early thirties involved governmental
methods of an unquestionably dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion. And these are not the only cases
which have justified extraordinary governmental action in nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial
methods. Wars are not won by debating societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless citizens will not be effected through a scrupulous
regard for the tenets of free enterprise, hardships caused by the eruptions of nature cannot be
mitigated letting nature take its course. The Civil War, the depression of 1933 and the recent global
conflict were not and could not have been successfully resolved by governments similar to those of
James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional
DictatorshipCrisis of Government in the Modern Democracies, p. 6 [1948).
rebellioneconomic depression
II
We are next confronted with the insistence of Petitioners that the referendum in question not having
been done inaccordance with the provisions of existing election laws, which only qualified voters
who are allowed to participate, under the supervision of the Commission on Elections, the new
Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that
Article XV of the 1935 Constitution provides the method for the of the constitution, and automatically
apply in the final approval of such proposed new Constitution the provisions of the election law and
those of Article V and X of the old Constitution. We search in vain for any provision in the old charter
specifically providing for such procedure in the case of a total or a rewriting of the constitution.
revision revisionwhole
1. There is clearly a distinction between and of an existing constitution. Revision may involve a
rewriting of the constitution. The act of a constitution, on the other hand, envisages a change of only
specific provisions. The intention of an act to amend is not the change of the entire constitution but
only the of parts of the existing constitution of the addition of provisions deemed essential as a
consequence of new constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.
revisionamendment wholeamending improvementspecific
1
The 1973 Constitution is not a mere to the 1935 Constitution.
It is a completely new fundamental charter embodying new political, social and economic
concepts.amendment
According to an eminent authority on Political Law, "The Constitution of the Philippines and that of
the United States expressly provide merely for methods of . But this is not a fatal omission. There is
nothing that can legally prevent a convention from actually revising the Constitution of the
Philippines or of the United States even were such conventions called merely for the purpose of
proposing and submitting amendments to the people. For in the final analysis, it is the that to any
proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
amendment. They are silent on the subject of revisionapproval of the peoplegives validity
Since the 1935 Constitution does not specifically provide for the method or procedure for the or for
the approval of a new constitution, should it now be held, that the people have placed such
restrictions on themselves that they are not disabled from exercising their right as the ultimate
source of political power from changing the old constitution which, in their view, was not responsive
to their needs and in adopting a new charter of government to enable them to rid themselves from
the shackles of traditional norms and to pursue with new dynamism the realization of their true
longings and aspirations, except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth
in the process of ratification who after all constitute the preponderant majority more in accord with
the spirit and philosophy of the constitution that political power is inherent in the people collectively?
As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts
held that the submission of the proposed amendment was illegal due to the absence of substantial
compliance with the procedure prescribed by the constitution, the procedure prescribed by the state
Constitution, is so detailed, that specified the in which such submission shall be made, thefor the
same, the of election and other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution. Thus the case of In re
McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved in the application
of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the
procedure under which the Constitution may be amended or revised.
revisionmanner persons qualified to vote date
2
This is not true with our Constitution. In the case of there
are no "standards meet for judicial judgment."revision
3

The framers of our Constitution were free to provide in the Constitution the method or procedure for
the revision or rewriting of the entire constitution, and if such was their intention, they could and
should have so provided. Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for their and methods for their .
amendment revision
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the
1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the
law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for
the revision or complete change of the Constitution, it is evident that the people have reserved such
power in themselves. They decided to exercise it not through their legislature, but through a
Convention expressly chosen for that purpose. The Convention as an independent and sovereign
body has drafted not an amendment but a completely new Constitution, which decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. In view of the inability of Congress to act, it was within the constitutional powers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all the reforms set in motion
under the new society, to root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and
procedure taken. "When the people adopt completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the
people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and
free governments are founded on their authority and instituted for their benefit. Thus Section 1 of
Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the term refers to the entire and not merely to
the , for the latter is only a fraction of the people and is only an organ of government for the election
of government officials.
people citizenry electorate
III
The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already as it has been accepted and acquiesced in by the people as shown by
their compliance with the decree promulgated thereunder, their cooperation in its implementation,
and is now maintained by the Government that is in undisputed authority and dominance?
effective
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity,
because under a regime of martial law the people are bound to obey and act in conformity with the
orders of the President, and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of other nations on an
entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as
a general rule martial law is the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in emergency situations. In
other words, martial rule exists when the military rises superior to the civil power in the exercise of
some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest.
Except for the imposition of curfew hours and other restrictions required for the security of the State,
the people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally
associated with a regime of Martial law in other countries. "Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at
long last been emancipateda consummation devoutly wished by every Philippine President since the
1930's. The laborer now holds his head high because his rights are amply protected and respected."
* A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the challenges of
the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in unprecedented
numbers and amount, lent their labors in massive cooperationin land reform, in the repair of dikes, irrigation ditches, roads and bridges, in
reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire country is turning into
one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been freed
from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines"
reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-
footed in using the power of presidential decree under martial law for this purpose. He has zeroed in
on areas which have been widely recognized as prime sources of the nation's difficultiesland
tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... for his leadership..." (Bulletin Today, March 3 and 4, 1973)..
there is marked public support
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New
York Times:
During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of
legislators to approve urgently needed reforms. He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and
Indonesia. Manila claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will
relinquish them. But, while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), .
he has hauled the Philippines out of stagnation
Sharecropping is being ended as more than three million acres of arable land are redistributed with
state funds. New roads have been started. The educational system is undergoing revision, a
corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-
class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a
birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms
and increased wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of
counsel for petitioners:
The new Constitution is considered "if the norms created in conformity with it are by and large
applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution
has become effective, the acts that appear with the subjective meaning of creating or applying legal
norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new
one. The statutes issued under the old Constitution and not taken over are no longer regarded as
valid, and the organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory
of Law, [1967].)
effective
The essentially political nature of the question is at once made manifest by understanding that in the
final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character of this Government which
now functions under the new Charter. It seeks to nullify a Constitution that is already .
effective
In such a situation, We do not see how the question posed by petitioners could be judicially decided.
"Judicial power presupposes an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government under which it is
exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller
Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted."
5
Such change in the organic law relates to the existence of a prior point in the Court's "chain of title" to its
authority and "does not relate merely to a question of the horizontal distribution of powers."
6
It involves in
essence a matter which "the sovereign has entrusted to the so-called political departments of government
or has reserved to be settled by its own extra governmental action."
7

The non-judicial character of such a question has been recognized in American law. "From its
earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating
dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To classify the various
instances as "political questions" is rather a form of stating this conclusion than revealing of analysis
... The crux of the matter is that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For
there is scarcely any principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faithin the nation's leadership and in the maturity of
judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court
in its judgment of March question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or which constitution
they will support and assert to represent, it may often be good judgment for them to follow the lead
of the men who as a practical matter are likely to be looked to by the people as more representative
of themselves and conversely are likely to be more directly in touch with popular sentiment. If,
however, the judges hold too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is involved. (Political Questions, 38
Harvard Law Review [1924-25], pp. 305-309.)
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.
8 Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the
withdrawal of the latter, the first two (2) only.
9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on
Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.

12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
14 Emphasis ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep.
963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R.
621, 24 N.W. 2d. 907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St.
Louis Brewing Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18;
Johnson v. Craft, 87 So. Rep. 375.
17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-
35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v.
Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089,
Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin
v. Siva, L-19870, Mar. 18, 1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965;
Philippine Constitution Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota
v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, Mar. 15, 1966; Gillera
v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29,
1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079,
Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al.,
L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing &
Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31,
1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar Development
Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works
v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372,
July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen
Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works and
Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission,
L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v.
NAWASA, L-12892, April 20,1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490,
Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41
Phil. 322.
18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-
35965 and L-35979, decided on January 22, 1973..

19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965,
Rogelio V. Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v.
Gen. Eduardo Garcia, et al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.;
L-34004, Domingo E. de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo
Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo
Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-34339, Gary
B. Olivar, et al. v. Gen. Eduardo Garcia, et al.
20 5 Phil. 87.
21 91 Phil. 882.
22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23 78 Phil. 1.
24 .
Supra
25 In re McConaughy, 119 N.W. 408, 417.
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
28 92 Ky. 589,18 S.W. 522, 523.
29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v.
Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.
31 12 L. ed. 581 (1849).
32 Luther v. Borden, , p. 598. Emphasis ours.
supra
33 In re McConaughy, , p. 416. Emphasis ours.
supra
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the
uniformity of authorities on the matter has been reiterated in Winget v. Holm, 244 N.W. 329,
332.
37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.
38 See p. 5 of the Petition.
39 Emphasis ours.
40 The Framing of the Philippine Constitution, by Aruego, Vol. I p. 215.
41 The Framing of the Philippine Constitution, by Aruego, Vol. I pp. 215, 221, 227-228.
42 ., pp. 222-224.
Ibid
43 ., pp. 224-227.
Id
44 SEC. 431..Every male person who is not a citizen or subject of a foreign power, twenty-
one years of age or over, who shall have been a resident of the Philippines for one year and
of the municipality in which he shall offer to vote for six months next preceding the day of
voting is entitled to vote in all elections if comprised within either of the following three
classes:
Qualifications prescribed for voters
"(a) Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day
of August, nineteen hundred and sixteen, were legal voters and had exercised the right of
suffrage.
"(b) Those who own real property to the value of five hundred pesos, declared in their name
for taxation purposes for a period not less than one year prior to the date of the election, or
who annually pay thirty pesos or more of the established taxes.
"(c) Those who are able to read and write either Spanish, English, or a native language.
"SEC. 432. .The following persons shall be disqualified from voting:
Disqualifications
"(a) Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight,
has been sentenced by final judgment to suffer not less than eighteen months of
imprisonment, such disability not having been removed by plenary pardon.
"(b) Any person who has violated an oath of allegiance taken by him to the United States.
"(c) Insane or feeble-minded persons.
"(d) Deaf-mutes who cannot read and write.
"(e) Electors registered under subsection (c) of the next preceding section who, after failing
to make a sworn statement to the satisfaction of the board of inspectors at any of its two
meetings for registration and revision, that they are incapacitated preparing their ballots due
to permanent physical disability, present themselves at the hour of voting as incapacitated,
irrespective whether such incapacity be real or feigned."
45 L-34150, October 16 and November 4, 1971.
46 "For taking action on any of the above enumerated measures, majority vote of all the
barrio assembly registered in the list of the barrio secretary is necessary."
members
47 "All duly registered barrio assembly members may vote in the plebiscite. Voting
procedures may be made either in writing as in regular elections, and/or declaration by the
voters to the board of election tellers. The board of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio
council may fill the same."
qualified to vote
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W.
419.
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that "when a state
constitution enumerates and fixes the qualifications of those , the legislature take from nor
add to said qualifications unless the power to do so is conferred upon it by the constitution
itself."
who may exercise the right of suffragecannot
Since suffrage, according to Webster, is a voice given not only in the choice of a man for an
office or trust, but, also, , it follows, considering the said ruling in Alcantara, that the
constitutional qualifications for voters apply equally to voters in elections to public office and
to voters in a plebiscite.
in deciding a controverted question
Similarly, the Revised Election Code provides in its section 2 that all elections of public
officers by the people and shall be conducted in conformity with the provisions of said Code.
all votings in connection with plebiscites
50 Republic Act No. 6388, section 101 of which, in part, provides:
"SEC. 101. .Every citizen of the Philippines, not otherwise disqualified by law, twenty-one
years of age or over, able to read and write, who shall have resided in the Philippines for one
year and in the city, municipality or municipal district wherein he proposes to vote for at least
six months immediately preceding the election, may vote at any election.
Qualifications prescribed for a voter
xxx xxx xxx
51 "SEC. 102. .The following persons shall not be qualified to vote:
Disqualifications
"(a) Any person who has been sentenced by final judgment to suffer an imprisonment of not
less than one year, such disability not having been removed by plenary pardon: , That any
person disqualified to vote under this paragraph shall automatically reacquire the right to
vote upon expiration of ten years after service of sentence unless during such period, he
shall have been sentenced by final judgment to suffer an imprisonment of not less than one
year.
Provided, however
"(b) Any person who has been adjudged by final judgment by competent court of having
violated his allegiance to the Republic of the Philippines.
"(c) Insane or feeble-minded persons.
"(d) Persons who cannot prepare their ballots themselves."
52 "SEC. 10. ...
"The following persons shall not be qualified to vote:
"a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years after service of his sentence;
"b. Any person who has violated his allegiance to the Republic of the Philippines; and
"c. Insane or feeble-minded persons."
53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau,
64 S.W. 2d. 168. Emphasis ours.
55 L-33325 and L-34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis ours.
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Emphasis ours.
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
61 Art. X, section 2 of the 1935 Constitution.
62 .
Ibid
63 Art. X, section 3 of the 1935 Constitution.
64 "SEC. 5. .The Commission shall adopt its own rules of procedure. Two members of the
Commission shall constitute rum. The concurrence of two members shall be necessary for
the pronouncement or issuance of a decision, order or ruling.
Organization of the Commission on Elections a quo
"The Commission shall have an executive and such other subordinate officers and
employees as may be necessary for the efficient performance of its functions and duties, all
of whom shall be appointed by the Commission in accordance with the Civil Service Law and
rules.
"The executive officer of the Commission, under the direction of the Chairman, shall, have
charge of the administrative business of the Commission, shall have the power to administer
oaths in connection with all matters involving the business of the Commission, and shall
perform such, other duties as may he required of him by the Commission.
"SEC. 6. .The Commission or any of the members thereof shall, in compliance with the
requirement of due process, have the power to summon the parties to a controversy pending
before it, issue and and otherwise take testimony in any investigation or hearing pending
before it, and delegate such power to any officer of the Commission who shall be a member
of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of
service of the to said witness, may issue a warrant to arrest the witness land bring him
before the Commission or officer before whom his attendance is required. The Commission
shall have the power to punish contempts provided for in the Rules of Court under the
controversy submitted to the Commission shall after complaince with the requirements of
due process be heard and decided by it within thirty days after submission of the case.
Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena
subpoenae subpoenae duces tecum subpoenae
"The Commission may, when it so requires, deputized any member of any national or local
law enforcement agency and/or instrumentality of the government to execute under its direct
and immediate supervision any of its final decisions, orders, instructions or rulings.
"Any decision, order or ruling of the Commission on election controversies may be reviewed
by the Supreme Court by writ of a in accordance with the Rules of Court or such applicable
laws as may enacted.
certiorari
"Any violation of any final executory decision, order or ruling of the Commission shall
constitute contempt thereof."
65 64 S.W. 2d. 168.
66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v. Hon.
Enrile, et al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546,
Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567
Doronila, et al. v. Secretary of National Defense, et al.; L-35573, Randon v. Hon. Enrile, et al.
67 "PRESIDENTIAL DECREE NO. 86-A
"STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES).

"WHEREAS, on the basis of preliminary and initial reports from the field as gathered from
barangays (citizens assemblies) have so far been established, the people would like to
decide themselves questions or issues, both local and national, affecting their day to day
lives and their future.
"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
expressing the views of the people on important national issues;
"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and
due recognition as constituting the genuine, legitimate and valid expression of the popular
will; and
"WHEREAS, the people would like the citizens assemblies to conduct immediately a
referendum on certain specified questions such as the ratification of the new Constitution,
continuance of martial law, the convening of Congress on January 22, 1973, and the
elections in November 1973 pursuant to the 1935 Constitution.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of
the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of
the Philippines, do hereby declare as part of the law of the land the following.
"1. The present barangays (citizens assemblies) are created under Presidential Decree No.
86 dated December 31, 1972, shall constitute the base for citizen participation in
governmental affairs and their collective views shall be considered in the formulation of
national policies or programs and, wherever practicable, shall be translated into concrete and
specific decision;
"2. Such barangays (citizens assemblies) shall consider vital national issues now confronting
the country, like the holding of the plebiscite on the new Constitution, the continuation of
martial rule, the convening of Congress on January 22, 1973, and the holding of elections in
November 1973, and others in the future, which shall ;
serve as guide or basis for action or decision by the national government
"3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in paragraph 2 hereof,
and submit the results thereof to the Department of Local Governments and Community
Development immediately thereafter, pursuant to the express will of the people as reflected
in the reports gathered from the many thousands of barangays (citizens assemblies)
throughout the country.
"4. This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen
hundred and seventy-three." (Emphasis ours.).
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.
69 Art. VII, section 2, 1935 Constitution.
70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v.
Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76
p 2d. 1022. McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson
v. Pigg, 46 N.E. 2d. 232.
71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588;
State ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election
Board, 431 P. 2d. 352, Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State
ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board
of Elections of Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v.
Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W.
1013; Hagan v. Henry, 76 S.W. 2d. 994.
72 106 Minn 392, 119 N.W. 408, 409.
73 63 N.J. Law, 289, cited in In re McConaughy, .
supra
74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, .
supra
75 See cases listed on pages 105-106, footnotes 56, 57 and 58.
76 On December 19, 1972.
77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris
v. Shanahan, 387 P. 2d. 771, 784, 785.
78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547,
548, 68 L. ed. 841, 843, 44 S. Ct. 405.
79 Art. VII, section 10, paragraph (1).
80 101 Va. 529, 44 S.E. 754.
81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749-
750; Guevara v. Inocentes, L-25577, March 15, 1966.
82 Which, in some respects, is regarded as an organ of the Administration, and the news
items published therein are indisputably censored by the Department of Public Information.
83 Daily Express, November 29, 1972, p. 4. Emphasis ours.
84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
86 Justice Barredo's opinion in the plebiscite cases.
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
88 Justice Barredo's language.
89 At p. 153, joint opinion of Justices Makalintal and Castro.
90 Joint Opinion of Justices Makalintal and Castro, p. 153.
91 At p. 8, .
Idem
ANNEX B
* The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed
a separate dissenting opinion when the Court denied a motion for reconsideration, and voted
in favor of the validity of the questioned Resolution. Mr. Justice Enrique M. Fernando joined
in the dissent.
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 1935 Constitution, reducing the voting age from 21
to 18, but the submission of which to a plebiscite was declared invalid by this Court in
Tolentino vs. COMELEC, became a reality of an even more far-reaching importsince fifteen-
year olds were included in the Citizens Assemblies.

* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers
constituting majorities) have expressed their option.
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
BARREDO, J., CONCURRING:
1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs.
Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-
35940, January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22,
1973; Sedfrey A. Ordoez, et al., vs. The National Treasurer of the Philippines, et al., L-
35942, January 22, 1973; Vidal Tan, et al., vs. Comelec, et al., L-35948, January 22, 1973;
Jose W. Diokno, et al., vs. Comelec, L-35953, January 22, 1973; Jacinto Jimenez vs.
Comelec, et al., L-35961, January 22, 1973; Raul M. Gonzales vs. Comelec, et al., L-35965,
January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979, January 22, 1973.

2 Executive Agreements are not included in the corresponding provision of the 1935
Constitution.
3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to
submit one amendment which was to form part of the Constitution still being prepared by it
separately from the rest of the other parts of such constitution still unfinished, and We held
that a piece-meal submission was improper. We had no occasion to express any view as to
how a whole new Constitution may be ratified.
* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New
York in 1824, died in 1898. Judge Cooley was also professor and later dean of the Law
Department of the University of Michigan and Justice of the State Supreme Court of
Michigan from 1864 to 1885, when he failed to win re-election to the court.
ESGUERRA, J., CONCURRING:
1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v.
Commission on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections,
et al., L-35940; Eddie B. Monteclaro v. The Commission on Elections, et al., Sedfrey A.
Ordoez, et al. v. The National Treasurer of Philippines, et al., L-35942; Vidal Tan, et al. v.
Commission on Elections, et al., L-35948; Jose W. Diokno, et al. v. The Commission on
Elections, L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-35961; Raul M.
Gonzales v. The Honorable Commission on Elections, et al., L-35965; Ernesto Hidalgo v.
Commission Elections, et al., L-35979.

2 See Taada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L-38196, November 9, 1967, 21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516.
See also the plebiscite cases, mentioned in footnote 1, .
ante
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
FERNANDO, J., dissenting:
1 Memorandum for Respondents, 2.
2 According to the 1935 Constitution: "The Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate and of the House of Representatives voting
separately may propose amendments to this Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are submitted to the
people for their ratification." Art. XV, Section 1.
3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made
this not-entirely-inaccurate observation: "No governmental institution that consists of a group
of legal technicians appointed for life can ever hope to cope with, much less solve, the
exigent problems of our polity." , 231. He was referring of course to the Supreme Court of the
United States.
Ibid
4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
5 Black, The People and the Court (1960).
6 Murphy, Elements of Judicial Strategy (1964).
7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Taada v. Cuenco, 103 Phil.
1051 (1957); Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA 702.
10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11 256 US 368 (1921).
12 , 374-375.
Ibid
13 L-33964, Dec. 11, 1971, 42 SCRA 448.
14 , 504-505.
Ibid
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16 , 395.
Ibid
I7 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938)..
18 Cf. Bickel, The Least Dangerous Branch (1962).
19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of
the United States (1962).
20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935),
Appendix L, 800.
21 65 Phil. 56 (1937).
22 , 96.
Ibid
23 63 Phil. 139 (1936).
24 L-35925, January 22, 1973.
25 Rostow, The Democratic Character of Judicial Review in Selected Essays on
Constitutional Law 1938 1962, 1, 2 (1963).
26 .
Ibid
27 , 3.
Ibid
28 , 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of
California, 342 US 165 (1952).
Ibid
29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice
Frankfurter found in his opinion in Stein v. New York, 346 US 156 (1953).
30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31 Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the Throne, 12 (1947).
34 Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).
36 Haines, Charles Grove, The Role of the Supreme Court in American Government and
Politics, 1789-1835, 3 (1960).
37 369 US 186.
38 395 US 486.
39 328 US 549 (1946).
40 , 556.
Ibid
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. (1964); Wright v.
Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12
L ed 2d 506, 84 S Ct 1362 (1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S
Ct. (1964); Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442
(1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman v.
Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas v. Colorado General
Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 us 433,
13 L ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed 2d 376, 86 S
Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d 650, 87 S Ct.
1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 (1967).
42 77 Phil. 192 (1946).
43 , 56.
Ibid
44 New York Times Company v. United States, 29 L ed. 822 (1971).
45 Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77
(1959). It is the first essay in his Principles, Politics and Fundamental Law.
46 The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute
Neutrality, 11 J. Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of
Profession, 34 Rocky Mt. L. Rev. 123, 136-46 (1962); Henkin, Some Reflections on Current
Constitutional Controversy, 109 U. Pa. L. Rev. 637 (1961); Henson, A Criticism of Criticism:
In re Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note on the Criticism of Supreme
Court Decisions, 10 J. Pub. L. 139 (1961), Wright, The Supreme Court Cannot be Neutral,
40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's Theology, 73 Harv. L. Rev. 1298
(1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960);
Griswold, Of Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81 (1960);
Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and
Howell The Myth of Neutrality in Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960);
Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart,
Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial
Domination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1
(1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
46 Cf. Taada v. Cuenco, 103 Phil. 1051, 1089 (1957).
49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v.
Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v.
Blattner, 67 Iowa 287, 25 NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888);
State v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526
(1895); State v. Powell, 77 Miss. 543, 27 So. 927 (1900); State v. Brookhart, 113 Iowa 250,
84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59 NE 359 (1901); Utter v. Moseley, 16
Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475, 64 SE 342 (1909); People ex
rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer, 156 Ky. 783, 162
SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 160 Wis.
354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re
Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202 Mich. 692,
168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State, 103
Ohio St. 306, 133 NE 552 (1921); Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re
Opinion of the Justices, 237 Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130 Miss.
188, 93 So. 769 (1922); Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1923); In re
Initiative Petition, 89 Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 Pa. 207, 126 A.
263 (1924); McAdams v. Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC
434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v.
City of New York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of New
Orleans, 163 La. 777 So. 718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31
(1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 (1929); School Dist. of City of Pontiac v.
City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier v. Gray, 116 Fla. 845, 157 So. 40
(1934); In re Opinion to Governor, 55 R.I. 56, 178 A. 433 (1935); State ex rel Landis v.
Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235
(1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jones,
198 La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947);
Palmer v. Dunn, 216 SC 558, 59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File No. 31, 25 Neb.
864, 41 NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People,
19 Colo. 441, 36 Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v.
Ferguson, 10 SD 44, 71 NW 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901);
Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1902); People v. Sours, 31 Colo. 369,
102 74 P. 167 (1903); People v. Loomis, 135 Mich. 556, 98 NW 262 (1904); West v. State,
50 Fla. 154, 39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907); Farrell v.
Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106 Minn. 392, 119 NW
408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 Ga.
313, 71 SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v.
Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136 P. 374 (1913);
Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. 1040 (1914); State v. Alderson, 49 Mont.
387, 142 P. 210 (1914); Ramsey v. Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes,
43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v.
Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917);
State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319
(1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 Mo. 401, 217 SW
752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116
S.C. 412, 107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922);
Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351 SW
752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 (1923); Manos v. State, 98 Tax.
Cr. 87, 263 SW 310 (1924); State v. Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor
v. King, 284 Pa. 235, 130 A. 407 (1925); Board of Liquidation of State Debt of Louisiana v.
Whitney-Central Trust and Savings Bank, 168 La. 560, 122 So. 850 (1929); State v. Cline,
118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2d 202, 34 P.
2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg.
Commission v. Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186
SE 420 (1936); Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937);
Swanson v. State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So.
78 (1939); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No.
224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d
569 (1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).
51 Commonwealth Act No. 492 (1939).
52 , Section 3.
Ibid
53 Commonwealth Act No. 517 (1940).
54 Article VI of the 1935 Constitution.
55 Article VII of the 1935 Constitution.
56 It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a statutory creation of an independent
Commission on Elections.
57 Section 3, Commonwealth Act No. 517.
58 Republic Act No. 73 (1946).
59 Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act
Numbered Three Hundred and fifty-seven, otherwise known as the Election Code, and
Commonwealth Numbered Six hundred and fifty-seven, entitled "An Act to Reorganize the
Commission on Elections," is so far as they are not inconsistent herewith, are hereby made
applicable to the election provided for in this Act."
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered
One hundred eighty, as amended, insofar as they are not inconsistent herewith, are made
applicable to the election provided for in this Act." It is to be remembered that in the
plebiscite held, the two proposals last. Cf. on this point, Gonzales v. Commission on
Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
62 The 1935 Constitution provides: "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them." Article II, Section 1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937).
64 Mclver, The Web of Government, 84 (1947).
65 Corwin, The Higher Law Background of American Constitutional Law, in 1 Selected
Essays on Constitutional Law 3 (1938).
66 92 Ky. 589, 18 SW 522.
67 , 523.
Ibid
68 101 Va. 829, 44 SE 754.
69 , 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23 (1909)
and Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).
Ibid
70 Araneta v. Dinglasan. 84 Phil. 368 (1949).
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
TEEHANKEE, J., dissenting:
1 Section 1, which is the lone section of Art. XV; emphasis supplied.
2 Article XVII, section 16, proposed Constitution of Nov. 30,1972; emphasis supplied.
3 All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5;
emphasis supplied.
4 Respondents' memo dated March 2, 1973, p. 8; emphasis supplied.
5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for reconsideration in Tolentino Comelec, L-34150; dated Nov. 4,
1971, at page 3, per Barredo, J. with seven Justices concurring; emphasis supplied.
8 , at page 4, emphasis supplied.
Idem
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
10 Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections
to the Comelec. See also the Election Code of 1971.
11 Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs. Treasurer
(L-3054); Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L-3056), jointly
decided and reported in 84 Phil. 368.

12 , at pp. 384-385; emphasis supplied.
Idem
13 , at p. 437.
Idem
14 , at pp. 435-437.
Idem
15 , at p. 383. Justice Tuason further duly noted that "These observations, though beyond
the issue as formulated in this decision, may, we trust, also serve to answer the vehement
plea that for good of the Nation, the President should retain his extraordinary powers as long
as turmoil and other ills directly or indirectly traceable to the late war harass the Philippines."
Idem
16 Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and Annex
A thereof.
17 State vs. Powell, 77 Miss. 543, 27 south 927.
18 Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
19 Article XV, sec. 1, Constitution.
20 Article V, sec. 1, Constitution.
21 Article X, sec. 2, Constitution.
22 Respondents' memo dated March 2, 1973, p. 5.
23 Respondents' Comment dated Feb. 3, 1973, p. 67.
24 , at p. 46; note in parentheses supplied.
Idem
25 1 Cranch 137 (1803).
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak's "The Constitution and the Supreme Court", Vol. 1, p. 221.
29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30 Tolentino vs. Comelec L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.
30a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the
18-year olds retained the "permissive" language of section 1, Art. V. Thus, the proposed
amendment read "Section 1. Suffrage be exercised by (male) citizens of the Philippines not
otherwise disqualified by law, who are (twenty one) EIGHTEEN years of age or over and are
able to read and write ..."
may
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
32 Decision of Oct. 16, 1971, at p. 21.
33 21 SCRA 774 (Nov. 9, 1967).
34 Decision of Oct. 16, 1971, at p. 24.
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.
36 at pp. 1-2.
Idem
37 at p. 3.
Idem
38 Resolution of Nov. 4, 1971 in, per Barredo, J.; pp. 3-4.
Tolentino
39 Decision of Oct. 16, 1971 in , per Barredo, J. at p. 19.
Tolentino
40 All quotations are from the Chief Justice's concurring opinion in, pp. 4-7.
Tolentino
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in , pp. 8, 9, 10.
Tolentino
42 This Court thus declared in the Con-Con voting age reduction resolution as null and void
and prohibited its submittal at the 1971 elections for lack of proper submission since it did not
"provide the voter ... ample basis for an intelligent appraisal of the amendment. "Dec. of
October 16, 1971, per Barredo, J.
Tolentino
43 In re-Opinion of Justices, 115 N.E. Rep. 922-923.
44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45 "Barrios are units of municipalities or municipal districts in which they are situated ... ."
Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
47 , par. 2.
Idem
48 , par. 3 and 4, emphasis supplied.
Idem
49 One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot. ... ." ,
sec. 8.
Idem
50 , sec. 10, italics supplied. The same section further disqualifies persons convicted by final
judgment to suffer one year or more of imprisonment "within two years after service" or who
have violated their allegiance to the Republic and insane or feeble-minded persons.
Idem
51 , p. 2.
Supra
52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation
and supplemental rejoinder dated March 21, 1973 in L-36165.
53 Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29, 1973.
54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine
hundred seventy six thousand five hundred sixty one (14,976,561) members of all the
Barangays voted for the adoption of the proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; but a
majority of those who approved the new Constitution conditioned their votes on the demand
that the National Assembly provided in its Transitory Provisions should not be convened."
interim
55 Respondents' memo dated March 2, 1973, , p. 2.
supra
56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did
not look on the same with favor, since the constitutional point (that the Comelec has
exclusive charge of the conduct of elections and plebiscites) seems to have been overlooked
in the Assemblies."
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate
Sedfrey A. Ordoez et. al. in the plebiscite case L-359042, par. 12 of petition and admitted in
par. 4 of answer of therein respondents dated Dec. 15, 1972.
ANTONIO, J., CONCURRING:
* First decision promulgated by First Division of the Supreme Court.
1 "When a house is completely demolished and another is erected on the same location, do
you have a changed, repaired and altered house, or do you have a new house? Some of the
material contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or a
new house. We conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new Constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d 322,
327).
"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment', while a "revision" implies a re-examination and statement of the Constitution,
or some part of it, in a corrected or improved form." (Const. Secs. 196, 197, Staples v.
Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a
substantial field of application not mere alternative procedures in the same field." (McFadden
v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota,
Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this
opinion.
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
5 "A written constitution is susceptible of change in two ways: by revolution, which implies
action not pursuant to any provision of the constitution itself; and by revision, which implies
action pursuant to some procedural provision in the constitution. This distinction is concerned
with the and not with the of change. It may be significant, however, that the alleged alteration
does or does not purport to affect the existence of the court itself. In the nature of things, a
revolutionary charge does not admit judicial power as such to determine the fact of its
occurrence. If revolutionary constitution sets up a court differently constituted from the pre-
revolutionary court, neither tribunal is confronted with a substantial problem, for neither can
deny the act by which it was created without denying the fact of its creation. Thus the
Supreme Court in () uses language substantially parallel with what has been indicated above
as logical explanation of the case. For the court to give serious judicial consideration to such
a question would present "the singular spectacle of a court sitting as a court to declare that
we are not a court." (Brittle v. People, 2 Neb. 198, 214 [1873].) And even the alleged new
constitution purports to leave intact the former court and to permit its work to go on without
hiatus, the decision which the judges must make is still an individual choice to be made by
them as a matter of practical politics. Two commissions are being held out to them, and if
they will act as a court they must assess under which commission they are acting. To put the
matter another way, it must be true that in the first case aboveof two constitutions purporting
to establish two different courts,the men who were judges under the old regime and the men
who are called to be judges under the new have each to decide as individuals what they are
to do; and it may be that they choose at grave peril with the factional outcome still uncertain.
And, although it is equally obvious, the situation is logically identical where the same men
are nominated to constitute the court under both the old and new constitution, at a time when
the alleged change is occurringif it is peaceably and against a placid popular background.
Men under such circumstances may write most praiseworthily principles of statesmanship,
upon sovereignty and, its nature modes of action, and upon the bases of government, to
justify the choice between the two commissions. They can assert their choice in the course
of purported judicial action. But they cannot decide as a court, for the decision, once made,
by a retroactive hypothesis excludes any assumption of controversiality in the premises..
quare quantum Luther v. BordensupraDuke of York's
"Where the alleged change occurs not through revolutionary measures but through what has
been called revision, these logical difficulties disappear in one aspect, but become far more
embarrassing in another. Where the alteration purports to be made along the lines of a
procedural method laid down in the constitution, there is a standard which the court can
apply and, by so doing, it can perceive judicially whether or not the change has followed the
prescribed lines. If it has, there is no difficulty in pronouncing as a matter of law its
accomplishment. Only one exception is possible, namely, the ease where the alteration
purports at once to abolish the court or to depose its personnel. Then, although there would
be a question of law to be decided, it may be wondered who there is to decide it. Suppose,
however, the mode of change has failed in some way to conform to a directory provision of
the amending clause of the constitution; is the court to declare the attempt at alteration
unsuccessful? It would seem as a matter of law that it must do so; and yet what is the
situation if the proponents of the change say, "It is true that this measure failed under the
amending clause, but as a revolutionary measure it was a success and we insist upon its
recognition." Clearly the members of the court are now more badly than ever entangled in
the logical difficulties which attend a purported judicial pronouncement upon the achievement
or non-achievement of revolutionary change. For the temptation will be great to treat the
matter as a legal question. The times are peaceful. The changes probably do no affect the
tenure of many offices of any branch of the government. The popular inertia is likely to allow
the court successfully to assume the question to be one of law. The path of fallacy is not too
strikingly fallacious to the uncritical observer. It may lead to just results. The judges' personal
inclinations will be to show deference to the expression of popular sentiment which has been
given. And yet, if they declare the change in force, they are truly making a personal
declaration that they believe the change to be the directly expressed will of the sovereign,
which will they assert to be law, but the fact of existence of which willand this is the real
decisionis not ascertainable in the given case by any legal means. It is submitted that this is
true, and that the conclusions offered in the discussion of revolutionary change are true,
also, whether the of change involved be vast or almost negligible.
quantum
"The net result of the preceding discussion is this: that in almost the whole field of problems
which the case and the American constitutional amendment cases present, the court as a
court is precluded from passing upon the fact of change by a logical difficulty which is not to
be surmounted. It follows that there is no room for considering whether the court ought
graciously and deferentially to look to the executive or legislative for a decision that a change
has or has not taken place.
Duke of York's
6 & 7 . pp. 301, 305.
Ibid
APPENDIX TO OPINION.
@ The inclusion in the Appendix of provisions for Amendment and Revision in State
Constitutions, adopted after 1935, is only to stress the fact that the distinction between
Amendment and Revision of Constitution, which existed at the time of the adoption of the
1935 Constitution, has continued up to the present.
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND
REVISION @

1. Alaska (1959)Art. XIII. .
Amendment and Revision
Sec. 1. . Amendments to this constitution may be proposed by a two-thirds vote of each house of the
legislature. The secretary of state shall prepare a ballot title and proposition summarizing each
proposed amendment, and shall place them on the ballot for the next statewide election. If a majority
of the votes cast on the proposition favor the , it becomes effective thirty days after the certification
of the election returns by the secretary of state.
Amendmentsamendment
Sec. 2. . The legislature may call constitutional conventions at any time.
Convention
Sec. 3. . If during any ten-year period a constitutional convention has not been held, the secretary of
state shall place on the ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the
question need not be placed on the ballot until the end of the next ten-year period. If a majority of the
votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the
next regular statewide election, unless the legislature provides for the election of the election
delegates at a special election. The secretary of state shall issue the call for the convention. Unless
other provisions have been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification of and
ordinances. ... .
Call by referendumrevisions
Sec. 4. . Constitutional conventions shall have plenary power to amend or revise the constitution,
subject only to ratification by the people. No call for a constitutional convention shall limit these
powers of the convention.
Powers
2. California (1879)Art. XVIII. .
Amending and Revising the Constitution
Sec. 1. . Any amendment or amendments to this Constitution may be proposed in the Senate or
Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor
thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas
and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people in such manner, and at such time, and after such
publication as may be deemed expedient. Should more amendments than one be submitted at the
same election they shall be so prepared and distinguished, by numbers or otherwise, that each can
be voted on separately. If the people shall approve and ratify such amendment or amendments, or
any of them, by a majority of the qualified electors voting thereon such amendment or amendments
shall become a part of this constitution.
Constitutional amendments
Sec. 2. . Whenever two-thirds of the members elected to each branch of the Legislature shall deem
it necessary to revise this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of the electors voting at such
election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its
next session, provide by law for calling the same. The Convention shall consist of a number of
delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same
manner, and have the same qualifications, as Members of the Legislature. The delegates so elected
shall meet within three months after their election at such place as the Legislature may direct. At a
special election to be provided for by law, the that may be agreed upon by such Convention . The
returns of such election shall, in such manner as the Convention shall direct, be certified to the
Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretary of
State, and compare the returns so certified to him; and it shall be the duty of the Executive to
declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the
votes cast at such special election, to be the Constitution of the State of California.
Constitutional conventionConstitution shall be submitted to the people for their ratification or rejection, in
such manner as the Convention may determine
3. Colorado (1876)Art. XIX. .
Amendments
Sec. 1. . The general assembly may at any time be a vote of two-thirds of the members elected to
each house, recommend to the electors of the state, to vote at the next general election for or
against a convention to , alter and this constitution; and if a majority of those voting on the question
shall declare in favor of such convention, the general assembly shall, at the next session, provide for
the calling thereof. The number of members of the convention shall be twice that of the senate and
they shall be elected in the same manner, at the same places, and in the same districts. The general
assembly shall, in the act calling the convention, designate the day, hour and place of its meeting; fix
the pay of its members and officers, and provide for the payment of the same, together with the
necessary expenses of the convention. Before proceeding, the members shall take an oath to
support the constitution of the United States, and of the state of Colorado, and to faithfully discharge
their duties as members of the convention. The qualifications of members shall be the same as of
members of the senate; and vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said shall meet within three months after such election and
prepare such, alterations or amendments to the constitution as may be deemed necessary; which
shall be submitted to the for their ratification or rejection at , not less than two nor more than six
months after adjournment thereof; and unless so submitted and approved by a majority of the
electors voting at the election, no such revision, alteration or amendment shall take effect.
Constitutional convention; how calledreviseamendconvention revisionselectorsan election appointed by
the convention for that purpose
Sec. 2. . Any amendment or amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the members elected to
each house, such proposed amendment or amendments, together with the ayes and noes of each
house hereon, shall be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general assembly, and the
secretary of state shall also cause the said amendment or amendments to be published in full in not
more than one newspaper of general circulation in each county, for four successive weeks previous
to the next general election for members of the general assembly; and at said election the said
amendment or amendments shall be submitted to the electors of the state for their approval or
rejection, and such as are approved by a majority of those voting thereon shall become part of this
constitution.
Amendments to constitution; how adoptedqualified
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general assembly shall have at the
same session.
no power to propose amendments to more than six articles of this constitution
4. Delaware (1897)Art. XVI. .
Amendments and Conventions
Sec. 1. . Any amendment or amendments to this Constitution may be proposed in the Senate or
House of Representatives; and if the same shall be agreed to by two-thirds of all the members
elected to each House, such proposed amendment or amendments shall be entered on their
journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such
proposed amendment or amendments to be published three months before the next general election
in at least three newspapers in each County in which such newspaper shall be published; and if in
the General Assembly next after the said election such proposed amendment or amendments shall
upon yea and nay vote .
Proposal of constitutional amendments in general assembly; procedurebe agreed to by two-thirds of all
the members elected to each House, the same shall thereupon become part of the Constitution
Sec. 2. . The General Assembly by a two-thirds vote of all the members elected to each House may
from time to time provide for the submission to the qualified electors of the State at the general
election next thereafter the question, "Shall there be a Convention to revise the Constitution and
amend the same?;" and upon such submission, if a majority of those voting on said question shall
decide in favor of a Convention for such purpose, the General Assembly at its next session shall
provide for the election of delegates to such convention at the next general election. Such
Convention shall be composed of forty-one delegates, one of whom shall be chosen from each
Representative District by the qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by the qualified electors thereof
respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday
in September next after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for
the transaction of business. The Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and fix their compensation, and provide for
the printing of its documents, journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns and qualifications of its
members. Whenever there shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such
vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of
such district or county.
Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties;
vacancies
5. Florida (1887)Art. XVII. .
Amendments
Sec. 1. . Either branch of the Legislature, at any regular session, or at any special or extra-ordinary
session thereof called for such purpose either in the governor's original call or any amendment
thereof, may propose the revision or amendment of any portion or portions of this Constitution. Any
such revision or amendment may relate to one subject or any number of subjects, but no
amendment shall consist of more than one revised article of the Constitution.
Method of amending constitution
If the proposed revision or amendment is agreed to by three-fifths of the members elected to each
house, it shall be entered upon their respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks, immediately preceding the
election at which the same is to be voted upon, and thereupon submitted to the electors of the State
for approval or rejection at the next general election, provided, however, that such or may be
submitted for approval or rejection in a special election under the conditions described in and in the
manner provided by Section 3 of Article XVII of the Constitution. If a majority of the electors voting
upon the amendment adopt such amendment the same shall become a part of this Constitution.
revisionamendment
Sec. 2.. If at any time the Legislature, by a vote of two-thirds of all the members of both Houses,
shall determine that a of this Constitution is necessary, such determination shall be entered upon
their respective Journals, with yea's and nay's thereon. Notice of said action shall be published
weekly in one newspaper in every county in which a newspaper is published, for three months
preceding the next general election of Representatives, and in those countries where no newspaper
is published, notice shall be given by posting at the several polling precincts in such counties for six
weeks next preceding said election. The electors at said election may vote for or against the revision
in question. If a majority of the electors so voting be in favor of revision, the Legislature chosen at
such election shall provide by law for a Convention to revise the Constitution, said Convention to be
held within six months after the passage of such law. The Convention shall consist of a number
equal to the membership of the House of Representatives, and shall be apportioned among the
several counties in the same manner as members of said House.
Method of revising constitutionrevision
6. Idaho (1890)Art. XIX. .
Amendments
Sec. 1. . Any amendment or amendments to this Constitution may be proposed in either branch of
the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two
houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the legislature to submit such
amendment or amendments to the electors of the state at the next general election, and cause the
same to be published without delay for at least six consecutive weeks, prior to said election, in not
less than one newspaper of the general circulation published in each county; and if a majority of the
electors shall ratify the same, such amendment or amendments shall become a part of this
Constitution.
How amendments may be proposed
Sec. 3. . Whenever two-thirds of the members elected to each branch of the legislature shall deem it
necessary to call a convention to or this Constitution, they shall recommend to the electors to vote at
the next general election, for or against a convention, and if a majority of all the electors voting at
said election shall have voted for a convention, the legislature shall at the next session provide by
law for calling the same; and such convention shall consist of a number of members, not less than
double the number of the most numerous branch of the legislature.
Revision or amendments by conventionreviseamend
7. Iowa (1857)Art. X. .
Amendments to the Constitution
Sec. 3. . At the general election to be held in the year one thousand eight hundred and seventy, and
in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide,
the question, "Shall there be a Convention to the Constitution, and the same?" shall be decided by
the electors qualified to vote for members of the General Assembly; and in case a majority of the
electors so qualified, voting at such election, for and against such proposition, shall decide in favor of
a Convention for such purpose, the General Assembly, at its next session, shall provide by law for
the election of delegates to such Convention.
Conventionreviseamend
8. Michigan (1909)Art. XVII. .
Amendments and Revision
Sec. 1. . Any amendment or amendments to this constitution may be proposed in the senate or
house of representatives. If the same shall be agreed to by 2/3 of the members elected to each
house, such or shall be entered on the journals, respectively, with the yeas and nays taken thereon;
and the same shall be submitted to the electors at the next spring or autumn election thereafter, as
the legislature shall direct; and, if a majority of the for members of the legislature voting thereon shall
ratify and approve such amendment or amendments, the same shall become part of the constitution.
Amendments to constitution; proposal by legislature; submission to
electorsamendmentamendments electors qualified to vote
Sec. 4. . At the Biennial Spring Election to be held in the year 1961, in each sixteenth year thereafter
and at such times as may be provided by law, the question of a of the Constitution shall be
submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the
Electors voting on the question shall decide in favor of a Convention for such purpose, at an Election
to be held not later than four months after the Proposal shall have been certified as approved, the
Electors of each House of Representatives District as then organized shall Elect One Delegate for
each Electors of each Senatorial District as then organized shall Elect One Delegate for each State
Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City
on the First Tuesday in October next succeeding such election, and shall continue their sessions
until the business of the convention shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business. ... Noor adopted by such convention shall be
submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all
the delegates elected to the convention, the yeas and nays being entered on the journal. Any
proposed constitution or amendments adopted by such convention shall be submitted to thein the
manner provided by such convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not intervene between such final
adjournment and the date of such election. Upon the approval of such constitution or amendments
by a majority of the qualified electors voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
General revision; convention; procedureGeneral Revision proposed constitution amendment qualified
electors
9. Minnesota (1857)Art. XIV. .
Amendments to the Constitution
Sec. 1. . Whenever a majority of both houses of the legislature shall deem it necessary to alter or
amend this Constitution, they may proposed such alterations or , which proposed amendments shall
be published with the laws which have been passed at the same session, and said amendments
shall be submitted to the people for their approval or rejection at any general election, and if it shall
appear, in a manner to be provided by law, that a majority of all the electors voting at said election
shall have voted for and ratified such alterations or amendments, the same shall be valid to all
intents and purposes as a part of this Constitution. If two or more alterations or shall be submitted at
the same time, it shall be so regulated that the voters shall vote for or against each separately.
Amendments to constitution; majority vote of electors voting makes amendment
validamendmentsamendments
Sec. 2. . Whenever two-thirds of the members elected to each branch of the legislature shall think it
necessary to call a convention to revise this Constitution, they shall recommend to the electors to
vote at the next general election for members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted for a convention, the legislature
shall, at their next session, provide by law for calling the same. The convention shall consist of as
many members as the House of Representatives, who shall be chosen in the same manner, and
shall meet within three months after their election for the purpose aforesaid.
Revision of constitution
Sec. 3. . Any convention called to revise this constitution shall submit any revision thereof by said
convention to the people of the State of Minnesota for their approval or rejection at the next general
held not less than 90 days after the adoption of such , and, if it shall appear in the mannerthat three-
fifths of all the electors voting on the question shall have voted for and ratified such revision, the
same shall constitute a new constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall
not apply to election to the convention.
Submission to people of revised constitution drafted at conventionelection revision provided by law
10. Nevada (1864)Art. 16. .
Amendments
Sec. 1. . Any amendment or amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the
two houses, such proposed amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time of making such choice. And
if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be
agreed to by a majority of all the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the people, in such manner and
at such time as the Legislature shall prescribe; and if the people shall approve and ratify such
amendment or amendments by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall become a part of the
Constitution.
Constitutional amendments; procedure
Sec. 2. . If at any time the Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of they shall recommend to the electors at the
next election for Members of the Legislature, to vote for or against a convention, and if it shall
appear that a majority of the electors voting at such election, shall have voted in favor of calling a
Convention, the Legislature shall, at its next session provide by law for calling a Convention to be
holden within six months after the passage of such law, and such Convention shall consist of a
number of Members not less that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had to the highest number of vote
cast at such election for the candidates of any office or on any question.
Convention for revision of constitution; procedurethis entire Constitution
11. New Hamspire (1784)
Art. 99. . It shall be the duty of the selectmen, and assessors, of the several towns and places in this
state, in warning the first annual meetings for the choice of senators, after the expiration of seven
years from the adoption of this constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the
subject of a ; and, the meeting being warned accordingly, and not otherwise, the moderator shall
take the sense of the qualified voters present as to the necessity of a revision; and a return of the
number of votes for and against such necessity, shall be made by the clerk sealed up, and directed
to the general court at their then next session; and if, it shall appear to the general court by such
return, that the sense of the people of the state has taken, and that, in the opinion of the majority of
the qualified voters in the state, present and voting at said meetings, there is a necessity for a of the
constitution, it shall be the duty of the general court to call a convention for that purpose, otherwise
the general court shall direct the sense of the people to be taken, and then proceed in the manner
before mentioned. The delegates to be chosen in the same manner, and proportioned, as the
representatives to the general court; provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and unincorporated places, and approved by two
thirds of the qualified voters present and voting on the subject.
Revision of constitution provided forrevision of the constitutionrevision
12. Oklahoma (1907)Art. XXIV. .
Constitutional Amendments
Sec. 1. . Any or to this Constitution may be proposed in either branch of the Legislature, and if the
same shall be agreed to by a majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with yeas and nays thereon, be entered in their journals
and referred by the Secretary of State to the people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds vote of each house, shall order a
special election for that purpose. If a majority of all the voting at such election shall vote in favor of
any amendment thereto, it shall thereby become a part of this Constitution.
Amendments proposed by legislature; a submission to voteamendment amendments electors
If two or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters
shall embrace more than one general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission of proposals for the of this
Constitution by articles, which embrace one general subject, each proposed article shall be deemed
a single proposals or proposition
amendment
Sec. 2. . No convention shall be called by the Legislature to propose , or amendments to this
Constitution, or to, unless the law providing for such convention shall first be approved by the people
on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the electors of the State at a
general or special election and be approved by a majority of the electors voting thereon, before the
same shall become effective Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
Constitutional convention to propose amendments or new constitutionalterations, revisions propose a
new Constitution
13. Oregon (1859)Art. XVII. .
Amendments and Revisions
Sec. 1. . Any amendment or amendments to this Constitution may be proposed in either branch of
the legislative assembly, and if the same shall be agreed to by a majority of all the members elected
to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the legislative assembly shall order a
special election for that purpose. If a majority of the electors voting on any such amendment shall
vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against
such , or , severally, whether proposed by the legislative assembly or by initiative petition, shall be
canvassed by the secretary of state in the presence of the governor, and if it shall appear to the
governor that the majority of the votes cast at said election on said amendment, or amendments,
severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally, having received said
majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution from the date of such proclamation.
When two or more amendments shall be submitted in the manner aforesaid to the voters of this state
at the same election, they shall be so submitted that each amendment shall be voted on separately.
No convention shall be called to amend or propose amendments to this Constitution, or to propose ,
unless the law providing for such convention shall first be approved by the people on a referendum
vote at a regular general election. This article shall not be construed to impair the right of the people
to amend this Constitution by vote upon an initiative petition therefor.
Method of amending constitutionamendmentamendmentsa new Constitution
Sec. 2. . (1) In addition to the power to amend this Constitution granted by section 1, Article IV, and
section 1 of this Article, a may be proposed in either house of the Legislative Assembly and, if the
proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed
revision shall, with the yeas and nays thereon, be entered in their journals and referred by the
Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of
this Constitution, at the next regular state-wide primary election, except when the Legislative
Assembly orders a special election for that purpose. A proposed revision may deal with more than
one subject and shall be voted upon as one question. The votes for and against the proposed
revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it
appears to the Governor that the majority of the votes cast in the election on the proposed revision
are in favor of the proposed revision, he shall, promptly following the canvass, declare, by his
proclamation, that the proposed revision has received a majority of votes and has been adopted by
the people as the Constitution of the State of Oregon, as the case may be. The shall be in effect as
the Constitution or as a part of this Constitution from the date of such proclamation.
Method of revising constitutionrevision of all or part of this Constitution revision
14. Utah (1896)Art. 23. .
Amendments
Sec. 1. . Any amendments to his Constitution may be proposed in either house of the Legislature,
and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such
proposed amendment or amendments shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause the same to be published in at least one
newspaper in every county of the State, where a newspaper is published, for two months
immediately preceding the next general election, at which time the said amendment or amendments
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the
electors voting thereon shall approve the same, such amendment or amendments shall become part
of this Constitution. If two or more amendments are proposed, they shall be so submitted as to
enable the electors to vote on each of them separately.
Amendments; method of proposal and approval
Sec. 2. . Whenever two-thirds of the members, elected to each branch of the Legislature, shall deem
it necessary to call a convention to or this Constitution, they shall recommend to the electors to vote
at the next general election, for or against a convention, and, if a majority of all the electors, voting at
such election, shall vote for a convention. The Legislature, at its next session, shall provide by law
for calling the same. The convention shall consist of not less than the number of members in both
branches of the Legislature.
Revision of the Constitution by conventionrevise amend
15. Wyoming (1890)Art. XX. .
Amendments
Sec. 1. . Any or to this Constitution may be proposed in either branch of the legislature, and, if the
same shall be agreed to by two-thirds of all the members of the two houses, voting separately, such
proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their
journals, and it shall be the duty of the legislature to submit such amendment or amendments to the
electors of the state at the next general election, in at least one newspaper of general circulation,
published in each county, and if a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.
Procedure for amendmentsamendment amendments
Sec. 2. . If two or more amendments are proposed, they shall be submitted in such manner that the
electors shall vote for or against each of them separately.
How voted for
Sec. 3. . Whenever two-thirds of the members elected to each branch of the legislature shall deem it
necessary to call a convention to or this constitution, they shall recommend to the electors to vote at
the next general election for or against a convention, and if a majority of all the electors voting at
such election shall have voted for a convention, the legislature shall at the next session provide by a
law for calling the same; and such convention shall consist of a number of members, not less than
double that of the most numerous branch of the legislature.
Constitutional convention; provision forrevise amend
Sec. 4. . Any constitution adopted by such convention shall have no validity until it has been
submitted to and adopted by the people.
New constitution





G.R. No. L-2348 February 27, 1950
GREGORIO PERFECTO, plaintiff-appellee,
vs.
BIBIANO MEER, Collector of Internal Revenue, defendant-appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon for oppositor
and appellant.
Gregorio Perfecto in his own behalf.
BENGZON, J .:
In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income
tax upon his salary as member of this Court during the year 1946. After paying the amount (P802),
he instituted this action in the Manila Court of First Instance contending that the assessment was
illegal, his salary not being taxable for the reason that imposition of taxes thereon would reduce it in
violation of the Constitution.
The Manila judge upheld his contention, and required the refund of the amount collected. The
defendant appealed.
The death of Mr. Justice Perfecto has freed us from the embarrassment of passing upon the claim of
a colleague. Still, as the outcome indirectly affects all the members of the Court, consideration of the
matter is not without its vexing feature. Yet adjudication may not be declined, because (a) we are not
legally disqualified; (b) jurisdiction may not be renounced, ad it is the defendant who appeals to this
Court, and there is no other tribunal to which the controversy may be referred; (c) supreme courts in
the United States have decided similar disputes relating to themselves; (d) the question touches all
the members of the judiciary from top to bottom; and (e) the issue involves the right of other
constitutional officers whose compensation is equally protected by the Constitution, for instance, the
President, the Auditor-General and the members of the Commission on Elections. Anyway the
subject has been thoroughly discussed in many American lawsuits and opinions, and we shall hardly
do nothing more than to borrow therefrom and to compare their conclusions to local conditions.
There shall be little occasion to formulate new propositions, for the situation is not unprecedented.
Our Constitution provides in its Article VIII, section 9, that the members of the Supreme Court and all
judges of inferior courts "shall receive such compensation as may be fixed by law, which shall not be
diminished during their continuance in office." It also provides that "until Congress shall provide
otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen
thousand pesos". When in 1945 Mr. Justice Perfecto assumed office, Congress had not "provided
otherwise", by fixing a different salary for associate justices. He received salary at the rate provided
by the Constitution, i.e., fifteen thousand pesos a year.
Now, does the imposition of an income tax upon this salary in 1946 amount to a diminution thereof?.
A note found at page 534 of volume 11 of the American Law Reports answers the question in the
affirmative. It says:
Where the Constitution of a state provides that the salaries of its judicial officers shall not be
dismissed during their continuance in office, it had been held that the state legislature cannot
impose a tax upon the compensation paid to the judges of its court. New Orleans v. Lea
(1859) 14 La. Ann. 194; Opinion of Attorney-General if N. C. (1856) 48 N. C. (3 Jones, L.)
Appx. 1; Re Taxation of Salaries of Judges (1902) 131 N. C. 692, 42 S. E. 970; Com. ex. rel.
Hepburn v. Mann (1843) 5 Watts & S,. (Pa.) 403 [but see to the contrary the earlier and
much criticized case of Northumberland county v. Chapman (1829) 2 Rawle (Pa.) 73]
*

A different rule prevails in Wisconsin, according to the same annotation. Another state holding the
contrary view is Missouri.
The Constitution of the United States, likes ours, forbids the diminution of the compensation of
Judges of the Supreme Court and of inferior courts. The Federal Governments has an income tax
law. Does it embrace the salaries of federal judges? In answering this question, we should consider
four periods:
First period. No attempts was made to tax the compensation of Federal judges up to 1862
1
.
Second period. 1862-1918. In July, 1862, a statute was passed subjecting the salaries of "civil
officers of the United States" to an income tax of three per cent. Revenue officers, construed it as
including the compensation of all judges; but Chief Justice Taney, speaking for the judiciary, wrote to
the Secretary of the Treasury a letter of protest saying, among other things:
The act in question, as you interpret it, diminishes the compensation of every judge 3 per
cent, and if it can be diminished to that extent by the name of a tax, it may, in the same way,
be reduced from time to time, at the pleasure of the legislature.
The judiciary is one of the three great departments of the government, created and
established by the Constitution. Its duties and powers are specifically set forth, and are of a
character that requires it to be perfectly independent of the two other departments, and in
order to place it beyond the reach and above even the suspicion of any such influence, the
power to reduce their compensation is expressly withheld from Congress, and excepted from
their powers of legislation.
Language could not be more plain than that used in the Constitution. It is, moreover, one of
its most important and essential provisions. For the articles which limits the powers of the
legislative and executive branches of the government, and those which provide safeguards
for the protection of the citizen in his person and property, would be of little value without a
judiciary to uphold and maintain them, which was free from every influence, direct and
indirect, that might by possibility in times of political excitement warp their judgments.
Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the
Compensation of the judges, as unconstitutional and void
2
.
The protest was unheeded, although it apparently bore the approval of the whole Supreme Court,
that ordered it printed among its records. But in 1869 Attorney-General Hoar upon the request of the
Secretary of the Treasury rendered an opinion agreeing with the Chief Justice. The collection of the
tax was consequently discontinued and the amounts theretofore received were all refunded. For half
a century thereafter judges' salaries were not taxed as income.
3

Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly provided that
taxable income shall include "the compensation of the judges of the Supreme Court and inferior
courts of the United States". Under such Act, Walter Evans, United States judge since 1899, paid
income tax on his salary; and maintaining that the impost reduced his compensation, he sued to
recover the money he had delivered under protest. He was upheld in 1920 by the Supreme Court in
an epoch-making decision.
*
, explaining the purpose, history and meaning of the Constitutional
provision forbidding impairment of judicial salaries and the effect of an income tax upon the salary of
a judge.
With what purpose does the Constitution provide that the compensation of the judges "shall
not be diminished during their continuance in office"? Is it primarily to benefit the judges, or
rather to promote the public weal by giving them that independence which makes for an
impartial and courageous discharge of the judicial function? Does the provision merely forbid
direct diminution, such as expressly reducing the compensation from a greater to a less sum
per year, and thereby leave the way open for indirect, yet effective, diminution, such as
withholding or calling back a part as tax on the whole? Or does it mean that the judge shall
have a sure and continuing right to the compensation, whereon he confidently may rely for
his support during his continuance in office, so that he need have no apprehension lest his
situation in this regard may be changed to his disadvantage?
The Constitution was framed on the fundamental theory that a larger measure of liberty and
justice would be assured by vesting the three powers the legislative, the executive, and
the judicial in separate departments, each relatively independent of the others and it was
recognized that without this independence if it was not made both real and enduring
the separation would fail of its purpose. all agreed that restraints and checks must be
imposed to secure the requisite measure of independence; for otherwise the legislative
department, inherently the strongest, might encroach on or even come to dominate the
others, and the judicial, naturally the weakest, might be dwarf or swayed by the other two,
especially by the legislative.
The particular need for making the judiciary independent was elaborately pointed our by
Alexander Hamilton in the Federalist, No. 78, from which we excerpt the following:
x x x x x x x x x
At a later period John Marshall, whose rich experience as lawyer, legislator, and chief justice
enable him to speak as no one else could, tersely said (debates Va. Gonv. 1829-1831, pp.
616, 619): . . . Our courts are the balance wheel of our whole constitutional system; and our
is the only constitutional system so balanced and controlled. Other constitutional systems
lacks complete poise and certainly of operation because they lack the support and
interpretation of authoritative, undisputable courts of law. It is clear beyond all need of
exposition that for the definite maintenance of constitutional understandings it is
indispensable, alike for the preservation of the liberty of the individual and for the
preservation of the integrity of the powers of the government, that there should be some
nonpolitical forum in which those understandings can be impartially debated and determined.
That forum our courts supply. There the individual may assert his rights; there the
government must accept definition of its authority. There the individual may challenge the
legality of governmental action and have it adjudged by the test of fundamental principles,
and that test the government must abide; there the government can check the too
aggressive self-assertion of the individual and establish its power upon lines which all can
comprehend and heed. The constitutional powers of the courts constitute the ultimate
safeguard alike of individual privilege and of governmental prerogative. It is in this sense that
our judiciary is the balance wheel of our entire system; it is meant to maintain that nice
adjustment between individual rights and governmental powers which constitutes political
liberty. Constitutional government in the United States, pp. 17, 142.
Conscious in the nature and scope of the power being vested in the national courts,
recognizing that they would be charge with responsibilities more delicate and important than
any ever before confide to judicial tribunals, and appreciating that they were to be, in the
words of George Washington, "the keystone of our political fabric", the convention with
unusual accord incorporated in the Constitution the provision that the judges "shall hold their
offices during good behavior, and shall at stated times receive for their services a
compensation which shall not be diminished during their continuance in office." Can there be
any doubt that the two things thus coupled in place the clause in respect of tenure during
good behaviour and that in respect of an undiminishable compensation-were equally coupled
in purpose? And is it not plain that their purposes was to invest the judges with an
independence in keeping with the delicacy and importance of their task, and with the
imperative need for its impartial and fearless performance? Mr. Hamilton said in explanation
and support of the provision (Federalist No. 79): "Next to permanency in office, nothing can
contribute more to the independence of the judges than a fixed provision for their support. . .
. In the general course of human nature, a power over a man's subsistence amounts to a
power over his will.
x x x x x x x x x
These considerations make it very plain, as we think, that the primary purpose of the
prohibition against diminution was not to benefit the judges, but, like the clause in respect of
tenure, to attract good and competent men to the bench, and to promote that independence
of action and judgment which is essential to the maintenance of the guaranties, limitations,
and pervading principles of the constitution, and to the admiration of justice without respect
to persons, and with equal concern for the poor and the rich.
x x x x x x x x x
But it is urged that what plaintiff was made to pay back was an income tax, and that a like tax
was exacted of others engaged in private employment.
If the tax in respect of his compensation be prohibited, it can find no justification in the
taxation of other income as to which there is no prohibition, for, of course, doing what the
Constitution permits gives no license to do what it prohibits.
The prohibition is general, contains no excepting words, and appears to be directed against
all diminution, whether for one purpose or another; and the reason for its adoption, as
publicly assigned at the time and commonly accepted ever since, make with impelling force
for the conclusion that the fathers of the Constitution intended to prohibit diminution by
taxation as well as otherwise, that they regarded the independence of the judges as of far
greater importance than any revenue that could come from taxing their salaries. (American
law Reports, annotated, Vol. 11, pp. 522-25; Evans vs. Gore, supra.)
In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites States court of
claims. His salary was taxed by virtue of the same time income tax of February 24, 1919. At the time
he qualified, a statute fixed his salary at P7,500. He filed action for reimbursement, submitting the
same theory on which Evans v. Gore had been decided. The Supreme Court of the United States in
1925 reaffirmed that decision. It overruled the distinction offered by Solicitor-General Beck that
Judge Graham took office after the income tax had been levied on judicial salaries, (Evans qualified
before), and that Congress had power "to impose taxes which should apply to the salaries of Federal
judges appointed after the enactment of the taxing statute." (The law had made no distinction as to
judges appointed before or after its passage)
Fourth period. 1939 Foiled in their previous attempts, the Revenue men persisted, and
succeeded in inserting in the United States Revenue Act of June, 1932 the modified proviso that
"gross income" on which taxes were payable included the compensation "of judges of courts of the
United States taking office after June 6, 1932". Joseph W. Woodrough qualified as United States
circuit judge on May 1, 1933. His salary as judge was taxed, and before the Supreme Court of the
United States the issue of decrease of remuneration again came up. That court, however, ruled
against him, declaring (in 1939) that Congress had the power to adopt the law. It said:
The question immediately before us is whether Congress exceeded its constitutional power
in providing that United States judges appointed after the Revenue Act of 1932 shall not
enjoy immunity from the incidence of taxation to which everyone else within the defined
classes of income is subjected. Thereby, of course, Congress has committed itself to the
position that a non-discriminatory tax laid generally on net income is not, when applied to the
income of federal judge, a diminution of his salary within the prohibition of Article 3, Sec. 1 of
the Constitution. To suggest that it makes inroads upon the independence of judges who
took office after the Congress has thus charged them with the common duties of citizenship,
by making them bear their aliquot share of the cost of maintaining the Government, is to
trivialize the great historic experience on which the framers based the safeguards of Article
3, Sec. 1. To subject them to a general tax is merely to recognize that judges also are
citizens, and that their particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government whose Constitution
and laws they are charged with administering. (O'Malley vs. Woodrough, 59 S. Ct. 838, A. L.
R. 1379.)
Now, the case for the defendant-appellant Collector of Internal Revenue is premised mainly on this
decision (Note A). He claims it holds "that federal judges are subject to the payment of income taxes
without violating the constitutional prohibition against the reduction of their salaries during their
continuance in office", and that it "is a complete repudiation of the ratio decidenci of Evans vs. Gore".
To grasp the full import of the O'Malley precedent, we should bear in mind that:
1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court now says is
inconsistent with what said in Miles vs. Graham, the latter can not survive", Justice Frankfurter
announced.
2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it indicates that
the Congressional Act in dispute avoided in part the consequences of that case.
Carefully analyzing the three cases (Evans, Miles and O'Malley) and piecing them together, the
logical conclusion may be reached that although Congress may validly declare by law that salaries
of judges appointed thereaftershall be taxed as income (O'Malley vs. Woodrough) it may not tax the
salaries of those judges already in office at the time of such declaration because such taxation would
diminish their salaries (Evans vs. Gore; Miles vs. Graham). In this manner the rationalizing principle
that will harmonize the allegedly discordant decision may be condensed.
By the way, Justice Frankfurter, writing the O'Malley decision, says the Evans precedent met with
disfavor from legal scholarship opinion. Examining the issues of Harvard Law review at the time
of Evans vs. Gore (Frankfurter is a Harvard graduate and professor), we found that such school
publication criticized it. Believing this to be the "inarticulate consideration that may have influenced
the grounds on which the case went off"
4
, we looked into the criticism, and discovered that it was
predicated on the position that the 16th Amendment empowered Congress "to collect taxes on
incomes from whatever source derived" admitting of no exception. Said the Harvard Law Journal:
In the recent case of Evans vs. Gore the Supreme Court of the United States decided that by
taxing the salary of a federal judge as a part of his income, Congress was in effect reducing
his salary and thus violating Art. III, sec. 1, of the Constitution. Admitting for the present
purpose that such a tax really is a reduction of salary, even so it would seem that the words
of the amendment giving power to tax 'incomes, from whatever source derived', are
sufficiently strong to overrule pro tanto the provisions of Art. III, sec. 1. But, two years ago,
the court had already suggested that the amendment in no way extended the subjects open
to federal taxation. The decision in Evans vs. Gore affirms that view, and virtually strikes
from the amendment the words "from whatever source derived". (Harvard law Review, vol.
34, p. 70)
The Unites States Court's shift of position
5
might be attributed to the above detraction which, without
appearing on the surface, led to Frankfurter's sweeping expression about judges being also citizens
liable to income tax. But it must be remembered that undisclosed factor the 16th Amendment
has no counterpart in the Philippine legal system. Our Constitution does not repeat it. Wherefore, as
the underlying influence and the unuttered reason has no validity in this jurisdiction, the broad
generality loses much of its force.
Anyhow the O'Malley case declares no more than that Congress may validly enact a law taxing the
salaries of judges appointed after its passage. Here in the Philippines no such law has been
approved.
Besides, it is markworthy that, as Judge Woodrough had qualified after the express legislative
declaration taxing salaries, he could not very well complain. The United States Supreme Court
probably had in mind what in other cases was maintained, namely, that the tax levied on the salary
in effect decreased the emoluments of the office and therefore the judge qualified with such reduced
emoluments.
6

The O'Malley ruling does not cover the situation in which judges already in office are made to pay
tax by executive interpretation, without express legislative declaration. That state of affairs is
controlled by the administrative and judicial standards herein-before described in the "second period"
of the Federal Government, namely, the views of Chief Justice Taney and of Attorney-General Hoar
and the constant practice from 1869 to 1938, i.e., when the Income Tax Law merely taxes "income"
in general, it does not include salaries of judges protected from diminution.
In this connection the respondent would make capital of the circumstance that the Act of 1932,
upheld in the O'Malley case, has subsequently been amended by making it applicable even to
judges who took office before1932. This shows, the appellant argues, that Congress interprets the
O'Malley ruling to permit legislative taxation of the salary of judges whether appointed before the tax
or after. The answer to this is that the Federal Supreme Court expressly withheld opinion on that
amendment in the O'Malley case. Which is significant. Anyway, and again, there is here no
congressional directive taxing judges' salaries.
Wherefore, unless and until our Legislature approves an amendment to the Income Tax Law
expressly taxing "that salaries of judges thereafter appointed", the O'Malley case is not relevant. As
in the United States during the second period, we must hold that salaries of judges are not included
in the word "income" taxed by the Income Tax Law. Two paramount circumstances may additionally
be indicated, to wit: First, when the Income Tax Law was first applied to the Philippines 1913,
taxable "income" did not include salaries of judicial officers when these are protected from
diminution. That was the prevailing official belief in the United States, which must be deemed to
have been transplanted here;
7
and second, when the Philippine Constitutional Convention approved
(in 1935) the prohibition against diminution off the judges' compensation, the Federal principle was
known that income tax on judicial salaries really impairs them. Evans vs. Gore and Miles vs.
Graham were then outstanding doctrines; and the inference is not illogical that in restraining the
impairment of judicial compensation the Fathers of the Constitution intended to preclude taxation of
the same.
8

It seems that prior to the O'Malley decision the Philippine Government did not collect income tax on
salaries of judges. This may be gleaned from General Circular No. 449 of the Department of Finance
dated March 4, 1940, which says in part:
x x x x x x x x x
The question of whether or not the salaries of judges should be taken into account in
computing additional residence taxes is closely linked with the liability of judges to income
tax on their salaries, in fact, whatever resolution is adopted with respect to either of said
taxes be followed with respect to the other. The opinion of the Supreme Court of the United
States in the case of O'Malley v. Woodrough, 59 S. Ct. 838, to which the attention of this
department has been drawn, appears to have enunciated a new doctrine regarding the
liability of judges to income tax upon their salaries. In view of the fact that the question is of
great significance, the matter was taken up in the Council of State, and the Honorable, the
Secretary of Justice was requested to give an opinion on whether or not, having in mind the
said decision of the Supreme Court of the United States in the case of O'Malley v.
Woodrough, there is justification in reversing our present ruling to the effect that judges are
not liable to tax on their salaries. After going over the opinion of the court in the said case,
the Honorable, the Secretary of Justice, stated that although the ruling of the Supreme Court
of the United States is not binding in the Philippines, the doctrine therein enunciated has
resolved the issue of the taxability of judges' salaries into a question of policy. Forthwith, His
Excellency the President decided that the best policy to adopt would be to collect income
and additional residence taxes from the President of the Philippines, the members of the
Judiciary, and the Auditor General, and the undersigned was authorized to act accordingly.
In view of the foregoing, income and additional residence taxes should be levied on the
salaries received by the President of the Philippines, members of the Judiciary, and the
Auditor General during the calendar year 1939 and thereafter. . . . . (Emphasis ours.)
Of course, the Secretary of Justice correctly opined that the O'Malley decision "resolved the issue of
taxability of judges' salaries into a question of policy." But that policy must be enunciated by
Congressional enactment, as was done in the O'Malley case, not by Executive Fiat or interpretation.
This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying
gasoline, or other commodities, they pay the corresponding duties. Owning real property, they pay
taxes thereon. And on incomes other than their judicial salary, assessments are levied. It is only
when the tax is charged directly on their salary and the effect of the tax is to diminish their official
stipend that the taxation must be resisted as an infringement of the fundamental charter.
Judges would indeed be hapless guardians of the Constitution if they did not perceive and block
encroachments upon their prerogatives in whatever form. The undiminishable character of judicial
salaries is not a mere privilege of judges personal and therefore waivable but a basic limitation
upon legislative or executive action imposed in the public interest. (Evans vs. Gore)
Indeed the exemption of the judicial salary from reduction by taxation is not really a gratuity or
privilege. Let the highest court of Maryland speak:
The exemption of the judicial compensation from reduction is not in any true sense a gratuity,
privilege or exemption. It is essentially and primarily compensation based upon valuable
consideration. The covenant on the part of the government is a guaranty whose fulfillment is
as much as part of the consideration agreed as is the money salary. The undertaking has its
own particular value to the citizens in securing the independence of the judiciary in crises;
and in the establishment of the compensation upon a permanent foundation whereby judicial
preferment may be prudently accepted by those who are qualified by talent, knowledge,
integrity and capacity, but are not possessed of such a private fortune as to make an
assured salary an object of personal concern. On the other hand, the members of the
judiciary relinquish their position at the bar, with all its professional emoluments, sever their
connection with their clients, and dedicate themselves exclusively to the discharge of the
onerous duties of their high office. So, it is irrefutable that they guaranty against a reduction
of salary by the imposition of a tax is not an exemption from taxation in the sense of freedom
from a burden or service to which others are liable. The exemption for a public purpose or a
valid consideration is merely a nominal exemption, since the valid and full consideration or
the public purpose promoted is received in the place of the tax. Theory and Practice of
Taxation (1900), D. A. Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl. Rep. 2d Series, p.
80)
It is hard to see, appellants asserts, how the imposition of the income tax may imperil the
independence of the judicial department. The danger may be demonstrated. Suppose there is power
to tax the salary of judges, and the judiciary incurs the displeasure of the Legislature and the
Executive. In retaliation the income tax law is amended so as to levy a 30 per cent on all salaries of
government officials on the level of judges. This naturally reduces the salary of the judges by 30 per
cent, but they may not grumble because the tax is general on all receiving the same amount of
earning, and affects the Executive and the Legislative branches in equal measure. However, means
are provided thereafter in other laws, for the increase of salaries of the Executive and the Legislative
branches, or their perquisites such as allowances, per diems, quarters, etc. that actually compensate
for the 30 per cent reduction on their salaries. Result: Judges compensation is thereby diminished
during their incumbency thanks to the income tax law. Consequence: Judges must "toe the line" or
else. Second consequence: Some few judges might falter; the great majority will not. But knowing
the frailty of human nature, and this chink in the judicial armor, will the parties losing their cases
against the Executive or the Congress believe that the judicature has not yielded to their pressure?
Respondent asserts in argumentation that by executive order the President has subjected his salary
to the income tax law. In our opinion this shows obviously that, without such voluntary act of the
President, his salary would not be taxable, because of constitutional protection against diminution.
To argue from this executive gesture that the judiciary could, and should act in like manner is to
assume that, in the matter of compensation and power and need of security, the judiciary is on a par
with the Executive. Such assumption certainly ignores the prevailing state of affairs.
The judgment will be affirmed. So ordered.
Moran, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.


Separate Opinions
OZAETA., J., dissenting:
It is indeed embarrassing that this case was initiated by a member of this Court upon which devolves
the duty to decide it finally. The question of whether the salaries of the judges, the members of the
Commission on Elections, the Auditor General, and the President of the Philippines are immune
from taxation, might have been raised by any interested party other than a justice of the Supreme
Court with less embarrassment to the latter.
The question is simple and not difficult of solution. We shall state our opinion as concisely as
possible.
The first income tax law of the Philippines was Act No. 2833, which was approved on March 7, 1919,
to take effect on January 1, 1920. Section 1 (a) of said Act provided:
There shall be levied, assessed, collected, and paid annually upon the entire net income
received in the preceding calendar year from all sources by every individual, a citizen or
resident of the Philippine Islands, a tax of two per centum upon such income. . . . (Emphasis
ours.)
Section 2 (a) of said Act provided:
Subject only to such exemptions and deductions as are hereinafter allowed, the taxable net
income of a person shall include gains, profits, and income derived from salaries, wages or
compensation for personal service of whatever kind and is whatever form paid, or from
professions, vocations, businesses, trade, commerce, sales, or dealings in property, whether
real or personal, growing out of the ownership or use of or interest in real or personal
property, also from interest, rent, dividends, securities, or the transaction of any business
carried on for gain or profit, or gains, profits, and income derived from any source whatever.
That income tax law has been amended several times, specially as to the rates of the tax, but the
above-quoted provisions (except as to the rate) have been preserved intact in the subsequent Acts.
The present income tax law is Title II of the National Internal Revenue Code, Commonwealth Act
No. 466, sections 21, 28 and 29 of which incorporate the texts of the above-quoted provisions of the
original Act in exactly the same language. There can be no dispute whatsoever that judges (who are
individuals) and their salaries (which are income) are as clearly comprehended within the above-
quoted provisions of the law as if they were specifically mentioned therein; and in fact all judges had
been and were paying income tax on their salaries when the Constitution of the Philippines was
discussed and approved by the Constitutional Convention and when it was submitted to the people
for confirmation in the plebiscite of May 14, 1935.
Now, the Constitution provides that the members of the Supreme Court and all judges of inferior
courts "shall receive such compensation as may be fixed by law, which shall not be diminished
during their continuance in office." (Section 9, Article VIII, emphasis ours.)
a

The simple question is: In approving the provisions against the diminution of the compensation of
judges and other specified officers during their continuance in office, did the framers of the
Constitution intend to nullify the then existing income tax law insofar as it imposed a tax on the
salaries of said officers ? If they did not, then the income tax law, which has been incorporated in the
present National Internal Revenue Code, remains in force in its entirety and said officers cannot
claim exemption therefrom on their salaries.
Section 2 of Article XVI of the Constitution provides that all laws of the Philippine Islands shall
remain operative, unless inconsistent with this Constitution, until amended, altered, modified. or
repealed by the Congress of the Philippines.
In resolving the question at bar, we must take into consideration the following well-settled rules:
"A constitution shall be held to be prepared and adopted in reference to existing statutory
laws, upon the provisions of which in detail it must depend to be set in practical operation"
(People vs. Potter, 47 N. Y. 375; People vs. Draper, 15 N. Y. 537; Cass vs. Dillon, 2 Ohio St.
607; People vs. N. Y., 25 Wend. (N. Y. 22). (Barry vs. Traux, 3 A. & E. Ann. Cas 191, 193.).
Courts are bound to presume that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption (Baltimore vs. State, 15 Md. 376,
480; 74 Am. Dec. 572; State vs. Mace, 5 Md. 337; Bandel vs. Isaac, 13 Md. 202; Manly vs.
State, 7 Md. 135; Hamilton vs. St. Louis County Ct., 15 Mo. 5; People vs. Gies, 25 Mich. 83;
Servis vs. Beatty, 32 Miss. 52; Pope vs. Phifer, 3 Heisk. (Tenn.) 686; People vs. Harding, 53
Mich. 48, 51 Am. Rep. 95; Creve Coeur Lake Ice Co. vs. Tamm, 138 Mo. 385, 39 S. W. Rep.
791). (Idem.)
A constitutional provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them. Constitutions, like
statutes, are properly to be expounded in the light of conditions existing at the time of their
adoption, the general spirit of the times, and the prevailing sentiments among the people.
Reference may be made to the historical facts relating to the original or political institutions of
the community or to prior well-known practices and usages. (11 Am. Ju., Constitutional Law,
676-678.)
The salaries provided in the Constitution for the Chief Justice and each associate Justice,
respectively, of the Supreme Court were the same salaries ]which they were receiving at the time
the Constitution was framed and adopted and on which they were paying income tax under the
existing income tax law. It seems clear to us that for them to receive the same salaries, subject to
the same tax, after the adoption of the Constitution as before does not involve any diminution at all.
The fact that the plaintiff was not a member of the Court when the Constitution took effect, makes no
difference. The salaries of justices and judges were subject to income tax when he was appointed in
the early part of 1945. In fact he must have declared and paid income tax on his salary for 19454
he claimed exemption only beginning 1946. It seems likewise clear that when the framers of the
Constitution fixed those salaries, they must have taken into consideration that the recipients were
paying income tax thereon. There was no necessity to provide expressly that said salaries shall be
subject to income tax because they knew that already so provided. On the other hand, if exemption
from any tax on said salaries had been intended, it would have been specifically to so provide,
instead of merely saying that the compensation as fixed "shall not be diminished during their
continuance in office."
In the light of the antecedents, the prohibition against diminution cannot be interpreted to include or
refer to general taxation but to a law by which said salaries may be fixed. The sentence in question
reads: "They shall receive such compensation as may be fixed by law, which shall not be diminished
during their continuance in office." The next sentence reads: "Until the Congress shall provide
otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of P16,000,
and each associate Justice, P15,000." It is plain that the Constitution authorizes the Congress to
pass a law fixing another rate of compensation, but that such rate must be higher than that which the
justices receive at he time of its enactment or, if lower, it must not affect those justice already in
office. In other words, Congress may approve a law increasing the salaries of the justices at any
time, but it cannot approve a law decreasing their salaries unless such law is made effective only as
to justices appointed after its approval.
It would be a strained and unreasonable construction of the prohibition against diminution to read
into it an exemption from taxation. There is no justification for the belief or assumption that the
framers of the Constitution intended to exempt the salaries of said officers from taxes. They knew
that it was and is the unavoidable duty of every citizen to bear his aliquot share of the cost of
maintaining the Government; that taxes are the very blood that sustains the life of the Government.
To make all citizens share the burden of taxation equitably, the Constitution expressly provides that
"the rule of taxation shall be uniform." (Section 22 [1], Article VI.) We think it would be a
contravention of this provision to read into the prohibition against diminution of the salaries of the
judges and other specified officers an exemption from taxes on their salaries. How could the rule of
income taxation be uniform if it should not be applied to a group of citizens in the same situation as
other income earners ? It is to us inconceivable that the framers ever intended to relieve certain
officers of the Government from sharing with their fellows citizens the material burden of the
Government to exempt their salaries from taxes. Moreover, the Constitution itself specifies what
properties are exempt from taxes, namely: "Cemeteries, churches, and parsonages or convents
appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious,
charitable, or educational purposes." (Sec. 22 [3], Article VI.) The omission of the salaries in
question from this enumeration is in itself an eloquent manifestation of intention to continue the
imposition of taxes thereon as provided in the existing law. Inclusio est exclusio alterius.
We have thus far read and construed the pertinent portions of our own Constitution and income tax
law in the light of the antecedent circumstances and of the operative factors which prevailed at the
time our Constitution was framed, independently of the construction now prevailing in the United
States of similar provisions of the federal Constitution in relation to the present federal income tax
law, under which the justices of the Supreme Court, and the federal judges are now, and since the
case of O'Malley vs. Woodrough was decided on May 22, 1939, have been, paying income tax on
their salaries. Were this a majority opinion, we could end here with the consequent reversal of the
judgment appealed from. But ours is a voice in the wilderness, and we may permit ourselves to utter
it with more vehemence and emphasis so that future players on this stage perchance may hear and
heed it. Who knows? The Gospel itself was a voice in the wilderness at the time it was uttered.
We have to comment on Anglo-American precedents since the majority decision from which we
dissent is based on some of them. Indeed, the majority say they "hardly do nothing more than to
borrow therefrom and to compare their conclusions to local conditions." which we shall presently
show did not obtain in the United States at the time the federal and state Constitutions were
adopted. We shall further show that in any event what they now borrow is not usable because it has
long been withdrawn from circulation.
When the American Constitution was framed and adopted, there was no income tax law in the
United States. To this circumstance may be attributed the claim made by some federal judges
headed by Chief Justice Taney, when under the Act of Congress of July 1, 1862, their salaries were
subjected to an income tax, that such tax was a diminution of their salaries and therefore prohibited
by the Constitution. Chief Justice Taney's claim and his protest against the tax were not heeded, but
no federal judge deemed it proper to sue the Collector of Internal Revenue to recover the taxes they
continued to pay under protest for several years. In 1869, the Secretary of the Treasury referred the
question to Atty. General Hoar, and that officer rendered an opinion in substantial accord with Chief
Justice Taney's protest, and also advised that the tax on the President's compensation was likewise
invalid. No judicial pronouncement, however, was made of such invalidity until June 1, 1920, when
the case of Evans vs. Gore(253 U.S. 245, 64 L. ed. 887) was decided upon the constitutionality of
section 213 of the Act of February 24, 1919, which required the computation of incomes for the
purpose of taxation to embrace all gains, profits, income and the like, "including in the case of the
President of the United States, the judges of the Supreme and inferior courts of the United States,
[and others] . . . the compensation received as such." The Supreme Court of the United States,
speaking through Mr. Justice Van Devanter, sustained the suit with the dissent of Justice Holmes
and Brandeis. The doctrine of Evans vs. Gore holding in effect that an income tax on a judge's salary
is a diminution thereof prohibited by the Constitution, was reaffirmed in 1925 in Miles vs. Graham, 69
L. ed 1067.
In 1939, however, the case of O'Malley vs. Woodrough (59 S. Ct. 838, 122 A. L. R. 1379) was
brought up to the test the validity of section 22 of the Revenue Act of June 6, 1932, which included in
the "gross income," on the basis of which taxes were to be paid, the compensation of "judges of
courts of the United States taking office after June 6, 1932." And in that case the Supreme Court of
the United States, with only one dissent (that of Justice Butler), abandoned the doctrine of Evans vs.
Gore and Miles vs. Graham by holding:
To subject them [the judges] to a general tax is merely to recognize that judges are also
citizens, and that their particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government whose Constitution
and laws they are charged with administering.
The decision also says:
To suggest that it [the law in question] makes inroads upon the independence of judges who
took office after Congress had thus charged them with the common duties of citizenship, by
making them bear their aliquot share of the cost of maintaining the Government, is to
trivialize the great historic experience on which the framers based the safeguard of Article 3,
section 1.
Commenting on the above-quoted portions of the latest decision of the Supreme Court of the United
States on the subject, Prof. William Bennett, Munro, in his book, The Government of the United
States, which is used as a text in various universities, says: ". . .
All of which seems to be common sense, for surely the framers of the Constitution from ever
cutting a judge's salary, did not intend to relieve all federal judges from the general
obligations of citizenship. As for the President, he has never raised the issue; every occupant
of the White House since 1913 has paid his income tax without protest. (Pages 371-372.)
We emphasize that the doctrine of Evans vs. Gore and Miles vs. Graham is no longer operative, and
that all United States judges, including those who took office before June 6, 1932, are subject to and
pay income tax on their salaries; for after the submission of O'Malley vs. Woodrough for decision the
Congress of the United States, by section 3 of the Public Salary Act of 1939, amended section 22 (a)
of the Revenue Act of June 6, 1932, so as to make it applicable to "judges of courts of the United
States who took office on or before June 6, 1932." And the validity of that Act, in force for more than
a decade, has not been challenged.
Our colleagues import and transplant here the dead limbs of Evans vs. Gore and Miles vs.
Graham and attempt to revive and nurture them with painstaking analyses and diagnoses that they
had not suffered a fatal blow fromO'Malley vs. Woodrough. We refuse to join this heroic attempt
because we believe it is futile.
They disregard the actual damage and minimize it by trying to discover the process by which it was
inflicted and he motivations that led to the infliction. They say that the chief axe-wielder, Justice
Frankfurter, was a Harvard graduate and professor and that the Harvard Law Journal had
criticized Evans vs. Gore; that the dissenters in said case (Holmes and Brandeis) were Harvard men
like Frankfurter; and that they believe this to be the "inarticulate consideration that may have
influenced the grounds on which the case [O'Malley vs. Woodrough] went off." This argument is not
valid, in our humble belief. It was not only the Harvard Law Journal that had criticized Evans vs.
Gore. Justice Frankfurter and his colleagues said that the decision in that case "met with wide and
steadily growing disfavor from legal scholarship and professional opinion," and they cited the
following: Clark, Furthermore Limitations Upon Federal Income Taxation, 30 Yale L. J. 75;
Corwin, Constitutional Law in 1919-1920, 15 Am. Pol. Sci. Rev. 635, 641-644; Fellman, Diminution
of Judicial Salaries, 24 Iowa L. Rev. 89; Lowndes, Taxing Income of Federal Judiciary, 19 Va. L.
Rev. 153; Powell, Constitutional Law in 1919-1920, 19 Mich. L. Rev. 117, 118; Powell,The Sixteenth
Amendment and Income from State Securities, National Income Tax Magazine (July, 1923), 5, 6; 20
Columbia L. Rev. 794; 43 Harvard L. Rev. 318; 20 Ill. L. Rev. 376; 45 Law Quarterly Rev. 291; 7 Va.
L. Rev. 69; 3 University of Chicago L. Rev. 141. Justice Frankfurter and his colleagues also said that
"Evans vs. Gore itself was rejected by most of the courts before whom the matter came after that
decision." Is not the intention to throw Evans vs. Gore into the graveyard of abandoned cases
manifest from all this and from the holding that judges are also citizens, liable to income tax on their
salaries?
The majority say that "unless and until our legislature approves an amendment to the income tax law
expressly taxing 'the salaries of judges thereafter appointed,' the O'Malley case is not relevant." We
have shown that our income tax law taxes the salaries of judges as clearly as if they are specifically
mentioned therein, and that said law took effect long before the adoption of the Constitution and long
before the plaintiff was appointed.
We agree that the purpose of the constitutional provision against diminution of the salaries of judges
during their continuance in office is to safeguard the independence of the Judicial Department. But
we disagree that to subject the salaries of judges to a general income tax law applicable
to all income earners would in any way affect their independence. Our own experience since the
income tax law went effect in 1920 is the best refutation of such assumption.
The majority give an example by which the independence of judges may be imperiled thru the
imposition of a tax on their salaries. They say: Suppose there is power to tax the salaries of judges
and the judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the
income tax law is amended so as to levy a 30 per cent tax on all salaries of government officials on
the level of judges, and by means of another law the salaries of the executive and the legislative
branches are increased to compensate for the 30 per cent reduction of their salaries. To this we
reply that if such a vindictive measure is ever resorted to (which we cannot imagine), we shall be the
first ones to vote to strike it down as a palpable violation of the Constitution. There is no parity
between such hypothetical law and the general income tax law invoked by the defendant in this
case. We believe that an income tax law applicable only against the salaries of judges and not
against those or all other income earners may be successfully assailed as being in contravention not
only of the provision against diminution of the salaries of judges but also of the uniformity of the rule
of taxation as well as of the equal protection clause of the Constitution. So the danger apprehended
by the majority is not real but surely imaginary.
We vote for the reversal of the judgment appealed from the dismissal of plaintiff's complaint.
Paras J., concurs.


Footnotes
*
Evans vs. Gore, 253 U. S. 245 and Gordy v. Dennis, 5 Atl. (2d) 69, hold identical view.
1
Evans vs. Gore, 253 U. S. 254, 64 L. ed. 887.
2
157 U. S. 701, Evans vs. Gore, supra.
3
See Evans vs. Gore, supra.
*
Evans vs. Gore, supra.
(Note A) The defendant also relies on the dissenting opinion of Mr. Justice Holmes in
Evans vs. Gore,supra, forgetting that subsequently Justice Holmes did not dissent in
Miles vs. Graham, and apparently accepted Evans vs. Gore as authority in writing his
opinion in Gillespie vs. Oklahoma, 257 U. S. 501, 66 Law ed. 338. This remark
applies to Taylor vs. Gehner (1931), No. 45 S. W. (2d) 59, which merely echoes
Holmes dissent.
State vs. Nygaard, 159, Wisc. 396 and the decision of English courts invoked by
appellant, are refuted or distinguished in Gordy vs. Dennis, 5 Alt. (2d) 68, known to
him since he invokes the minority opinion therein.
4
Frankfurter, The Administrative Side of Chief Justice Hughes, Harvard Law Review,
November, 1949.
5
It was a coincidence that the dissenters (Holmes and Brandeis) were Harvard men like
Frankfurter. It is not unlikely that the Harvard professor and admirer of Justice Holmes
(whose biography he wrote in 1938) noted and unconsciously absorbed the dissent.
6
Baker vs. C.I.R. 149 Fed. (2d) 342.
7
It requires a very clear case to justify changing the construction of a constitutional provision
which has been acquiesced in for so long a period as fifty years. (States vs. Frear, 138 Wisc.
536, 120 N. W. 216. See also Hill vs. Tohill, 225 Ill. 384, 80 NE, 253.
8
On persuasive weight of contemporary construction of constitutional provision, see
generally Cooley, Constitutional Limitation 98th Ed.) Vol. I pp. 144 et seq.
a
The Constitution also provides that the President shall "receive a compensation to be
ascertained by law which shall be neither increased nor diminished during the period for
which he shall have been elected" (section 9, Article VII); that the Auditor General "shall
receive an annual compensation to be fixed by law which shall not be diminished during his
continuance in office" (section 1, Article XI); and that the salaries of the chairman and the
members of the Commission on Elections "shall be neither increased nor diminished during
their term of office" (section 1, Article X).




G.R. No. L-6355-56 August 31, 1953
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,
vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant.
Manuel O. Chan for appellees.
MONTEMAYOR, J .:
This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of
Republic Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of
Internal Revenue to re-fund to Justice Pastor M. Endencia the sum of P1,744.45, representing the
income tax collected on his salary as Associate Justice of the Court of Appeals in 1951, and to
Justice Fernando Jugo the amount of P2,345.46, representing the income tax collected on his salary
from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of Appeals, and from
October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without special
pronouncement as to costs.
Because of the similarity of the two cases, involving as they do the same question of law, they were
jointly submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a
rather exhaustive and well considered decision found and held that under the doctrine laid down by
this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the
salaries of Justice Jugo and Justice Endencia was a diminution of their compensation and therefore
was in violation of the Constitution of the Philippines, and so ordered the refund of said taxes.
We see no profit and necessity in again discussing and considering the proposition and the
arguments pro and cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought
up and presented here. In that case, we have held despite the ruling enunciated by the United
States Federal Supreme Court in the case of O 'Malley vs. Woodrought 307 U. S., 277, that taxing
the salary of a judicial officer in the Philippines is a diminution of such salary and so violates the
Constitution. We shall now confine our-selves to a discussion and determination of the remaining
question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the
collection of income tax on the salary of judicial officers.
According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue,
our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress,
because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home
his point, the Solicitor General reproduced what he considers the pertinent discussion in the Lower
House of House Bill No. 1127 which became Republic Act No. 590.
For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:.
SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office
during good behavior, until they reach the age of seventy years, or become incapacitated to
discharge the duties of their office. They shall receive such compensation as may be fixed by
law, which shall not be diminished during their continuance in office. Until the Congress shall
provide otherwise, the Chief Justice of the Supreme Court shall receive an annual
compensation of sixteen thousand pesos, and each Associate Justice, fifteen thousand
pesos.
As already stated construing and applying the above constitutional provision, we held in the Perfecto
case that judicial officers are exempt from the payment of income tax on their salaries, because the
collection thereof by the Government was a decrease or diminution of their salaries during their
continuance in office, a thing which is expressly prohibited by the Constitution. Thereafter, according
to the Solicitor General, because Congress did not favorably receive the decision in the Perfecto
case, Congress promulgated Republic Act No. 590, if not to counteract the ruling in that decision, at
least now to authorize and legalize the collection of income tax on the salaries of judicial officers. We
quote section 13 of Republic Act No. 590:
SEC 13. No salary wherever received by any public officer of the Republic of the Philippines
shall be considered as exempt from the income tax, payment of which is hereby declared not
to be dimunition of his compensation fixed by the Constitution or by law.
So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly
section 9, Article VIII, has held that judicial officers are exempt from payment of income tax on their
salaries, because the collection thereof was a diminution of such salaries, specifically prohibited by
the Constitution. Now comes the Legislature and in section 13, Republic Act No. 590, says that "no
salary wherever received by any public officer of the Republic (naturally including a judicial officer)
shall be considered as exempt from the income tax," and proceeds to declare that payment of said
income tax is not a diminution of his compensation. Can the Legislature validly do this? May the
Legislature lawfully declare the collection of income tax on the salary of a public official, specially a
judicial officer, not a decrease of his salary, after the Supreme Court has found and decided
otherwise? To determine this question, we shall have to go back to the fundamental principles
regarding separation of powers.
Under our system of constitutional government, the Legislative department is assigned the power to
make and enact laws. The Executive department is charged with the execution of carrying out of the
provisions of said laws. But the interpretation and application of said laws belong exclusively to the
Judicial department. And this authority to interpret and apply the laws extends to the Constitution.
Before the courts can determine whether a law is constitutional or not, it will have to interpret and
ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in
order to decide whether there is a conflict between the two, because if there is, then the law will
have to give way and has to be declared invalid and unconstitutional.
Defining and interpreting the law is a judicial function and the legislative branch may not limit
or restrict the power granted to the courts by the Constitution. (Bandy vs. Mickelson et al.,
44N. W., 2nd 341, 342.)
When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional because they
cannot shrink from it without violating their oaths of office. This duty of the courts to maintain
the Constitution as the fundamental law of the state is imperative and unceasing; and, as
Chief Justice Marshall said, whenever a statute is in violation of the fundamental law, the
courts must so adjudge and thereby give effect to the Constitution. Any other course would
lead to the destruction of the Constitution. Since the question as to the constitutionality of a
statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the
suggestion that action might be taken by political agencies in disregard of the judgment of
the judicial tribunals. (11 Am. Jur., 714-715.)
Under the American system of constitutional government, among the most important
functions in trusted to the judiciary are the interpreting of Constitutions and, as a closely
connected power, the determination of whether laws and acts of the legislature are or are not
contrary to the provisions of the Federal and State Constitutions. (11 Am. Jur., 905.).
By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the
salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation
or ascertainment of the meaning of the phrase "which shall not be diminished during their
continuance in office," found in section 9, Article VIII of the Constitution, referring to the salaries of
judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an
invasion of the well-defined and established province and jurisdiction of the Judiciary.
The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act
declaratory of what the law was before its passage, so as to give it any binding weight with
the courts. A legislative definition of a word as used in a statute is not conclusive of its
meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function
in defining a term. (11 Am. Jur., 914, emphasis supplied)
The legislature cannot, upon passing a law which violates a constitutional provision, validate
it so as to prevent an attack thereon in the courts, by a declaration that it shall be so
construed as not to violate the constitutional inhibition. (11 Am. Jur., 919, emphasis supplied)
We have already said that the Legislature under our form of government is assigned the task and
the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case based on
a judicial interpretation of the law of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the Legislative
department. That would be neither wise nor desirable, besides being clearly violative of the
fundamental, principles of our constitutional system of government, particularly those governing the
separation of powers.
So much for the constitutional aspect of the case. Considering the practical side thereof, we believe
that the collection of income tax on a salary is an actual and evident diminution thereof. Under the
old system where the in-come tax was paid at the end of the year or sometime thereafter, the
decrease may not be so apparent and clear. All that the official who had previously received his full
salary was called upon to do, was to fulfill his obligation and to exercise his privilege of paying his
income tax on his salary. His salary fixed by law was received by him in the amount of said tax
comes from his other sources of income, he may not fully realize the fact that his salary had been
decreased in the amount of said income tax. But under the present system of withholding the income
tax at the source, where the full amount of the income tax corresponding to his salary is computed in
advance and divided into equal portions corresponding to the number of pay-days during the year
and actually deducted from his salary corresponding to each payday, said official actually does not
receive his salary in full, because the income tax is deducted therefrom every payday, that is to say,
twice a month. Let us take the case of Justice Endencia. As Associate Justice of the Court of
Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive P1,000 a month or
P500 every payday, fifteenth and end of month. In the present case, the amount collected by the
Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months)
we shall have P145.37 a month. And further dividing it by two paydays will bring it down to P72.685,
which is the income tax deducted form the collected on his salary each half month. So, if Justice
Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of
receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving
P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his
salary is actually decreased by P72.685 and every year is decreased by P1,744.45?
Reading the discussion in the lower House in connection with House Bill No. 1127, which became
Republic Act No. 590, it would seem that one of the main reasons behind the enactment of the law
was the feeling among certain legislators that members of the Supreme Court should not enjoy any
exemption and that as citizens, out of patriotism and love for their country, they should pay income
tax on their salaries. It might be stated in this connection that the exemption is not enjoyed by the
members of the Supreme Court alone but also by all judicial officers including Justices of the Court
of Appeals and judges of inferior courts. The exemption also extends to other constitutional officers,
like the President of the Republic, the Auditor General, the members of the Commission on
Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service
Commission, and judges of the Court of Industrial Relations. Compares to the number of all these
officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other
judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107
Judges of First Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason
behind the exemption in the Constitution, as interpreted by the United States Federal Supreme Court
and this Court, is to preserve the independence of the Judiciary, not only of this High Tribunal but of
the other courts, whose present membership number more than 990 judicial officials.
The exemption was not primarily intended to benefit judicial officers, but was grounded on public
policy. As said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs.
Gore (253 U. S., 245):
The primary purpose of the prohibition against diminution was not to benefit the judges, but,
like the clause in respect of tenure, to attract good and competent men to the bench and to
promote that independence of action and judgment which is essential to the maintenance of
the guaranties, limitations and pervading principles of the Constitution and to the
administration of justice without respect to person and with equal concern for the poor and
the rich. Such being its purpose, it is to be construed, not as a private grant, but as a
limitation imposed in the public interest; in other words, not restrictively, but in accord with its
spirit and the principle on which it proceeds.
Having in mind the limited number of judicial officers in the Philippines enjoying this exemption,
especially when the great bulk thereof are justices of the peace, many of them receiving as low as
P200 a month, and considering further the other exemptions allowed by the income tax law, such as
P3,000 for a married person and P600 for each dependent, the amount of national revenue to be
derived from income tax on the salaries of judicial officers, were if not for the constitutional
exemption, could not be large or substantial. But even if it were otherwise, it should not affect, much
less outweigh the purpose and the considerations that prompted the establishment of the
constitutional exemption. In the same case of Evans vs. Gore, supra, the Federal Supreme Court
declared "that they (fathers of the Constitution) regarded the independence of the judges as far as
greater importance than any revenue that could come from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for exemption from payment of
income tax on his salary, as a privilege . It is already attached to his office, provided and secured by
the fundamental law, not primarily for his benefit, but based on public interest, to secure and
preserve his independence of judicial thought and action. When we come to the members of the
Supreme Court, this excemption to them is relatively of short duration. Because of the limited
membership in this High Tribunal, eleven, and due to the high standards of experience, practice and
training required, one generally enters its portals and comes to join its membership quite late in life,
on the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he
does not die or become incapacitated earlier, naturally he is not in a position to receive the benefit of
exemption for long. It is rather to the justices of the peace that the exemption can give more benefit.
They are relatively more numerous, and because of the meager salary they receive, they can less
afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be
real, substantial and onerous.
Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is
based on public policy or public interest. While all other citizens are subject to arrest when charged
with the commission of a crime, members of the Senate and House of Representatives except in
cases of treason, felony and breach of the peace are exempt from arrest, during their attendance in
the session of the Legislature; and while all other citizens are generally liable for any speech, remark
or statement, oral or written, tending to cause the dishonor, discredit or contempt of a natural or
juridical person or to blacken the memory of one who is dead, Senators and Congressmen in making
such statements during their sessions are extended immunity and exemption.
And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and
juridical, are exempt from taxes on their lands, buildings and improvements thereon when used
exclusively for educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].)
Holders of government bonds are exempted from the payment of taxes on the income or interest
they receive therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic Act
No. 566). Payments or income received by any person residing in the Philippines under the laws of
the United States administered by the United States Veterans Administration are exempt from
taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army
who served in the Armed Forces of the United States, allowances earned by virtue of such services
corresponding to the taxable years 1942 to 1945, inclusive, are exempted from income tax.
(Republic Act No. 210). The payment of wages and allowances of officers and enlisted men of the
Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No.
35). In other words, for reasons of public policy and public interest, a citizen may justifiably by
constitutional provision or statute be exempted from his ordinary obligation of paying taxes on his
income. Under the same public policy and perhaps for the same it not higher considerations, the
framers of the Constitution deemed it wise and necessary to exempt judicial officers from paying
taxes on their salaries so as not to decrease their compensation, thereby insuring the independence
of the Judiciary.
In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect
that the collection of income tax on the salary of a judicial officer is a diminution thereof and so
violates the Constitution. We further hold that the interpretation and application of the Constitution
and of statutes is within the exclusive province and jurisdiction of the Judicial department, and that in
enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way
that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task
of later interpreting said statute, specially when the interpretation sought and provided in said statute
runs counter to a previous interpretation already given in a case by the highest court of the land.
In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no
pronouncement as to costs.
Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.


Separate Opinions
BAUTISTA ANGELO, J ., concurring:
Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs.
Meer, G. R. No. L-2314, in view of the part I had in that case as former Solicitor General, I wish
however to state that I concur in the opinion of the majority to the effect that section 13, Republic Act
No. 590, in so far as it provides that taxing of the salary of a judicial officer shall be considered "not
to be a diminution of his compensation fixed by the Constitution or by law", constitutes an invasion of
the province and jurisdiction of the judiciary. In this sense, I am of the opinion that said section is null
and void, it being a transgression of the fundamental principle underlying the separation of powers.


PARAS, C.J ., concurring and dissenting:
I dissent for the same reasons stated in the dissenting opinion of Mr. Justice Ozaeta in Perfecto vs.
Meer, 85 Phil., 552, in which I concurred. But I disagree with the majority in ruling that no legislation
may provide that it be held valid although against a provision of the Constitution.















G.R. No. 78780 July 23, 1987
DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT
OF THE PHILIPPINES, respondents.
R E S O L U T I O N
MELENCIO-HERRERA, J .:
Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53,
respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila,
seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and
the Financial Officer of the Supreme Court, from making any deduction of withholding taxes from
their salaries.
In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial
officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10,
Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary
shall not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in
and by said Constitution."
It may be pointed out that, early on, the Court had dealt with the matter administratively in response
to representations that the Court direct its Finance Officer to discontinue the withholding of taxes
from salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed
the Chief Justice's directive as follows:
RE: Question of exemption from income taxation. The Court REAFFIRMED the Chief
Justice's previous and standing directive to the Fiscal Management and Budget Office of this
Court to continue with the deduction of the withholding taxes from the salaries of the Justices
of the Supreme Court as well as from the salaries of all other members of the judiciary.
That should have resolved the question. However, with the filing of this petition, the Court has
deemed it best to settle the legal issue raised through this judicial pronouncement. As will be shown
hereinafter, the clear intent of the Constitutional Commission was to delete the proposed express
grant of exemption from payment of income tax to members of the Judiciary, so as to "give
substance to equality among the three branches of Government" in the words of Commissioner
Rigos. In the course of the deliberations, it was further expressly made clear, specially with regard to
Commissioner Joaquin F. Bernas' accepted amendment to the amendment of Commissioner Rigos,
that the salaries of members of the Judiciary would be subject to the general income tax applied to
all taxpayers.
This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured
by the failure to include in the General Provisions a proscription against exemption of any public
officer or employee, including constitutional officers, from payment of income tax, the Court since
then has authorized the continuation of the deduction of the withholding tax from the salaries of the
members of the Supreme Court, as well as from the salaries of all other members of the Judiciary.
The Court hereby makes of record that it had then discarded the ruling in Perfecto vs. Meer and
Endencia vs. David, infra, that declared the salaries of members of the Judiciary exempt from
payment of the income tax and considered such payment as a diminution of their salaries during
their continuance in office. The Court hereby reiterates that the salaries of Justices and Judges are
properly subject to a general income tax law applicable to all income earners and that the payment
of such income tax by Justices and Judges does not fall within the constitutional protection against
decrease of their salaries during their continuance in office.
A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:
... (The members of the Supreme Court and all judges of inferior courts) shall receive such
compensation as may be fixed by law, which shall not be diminished during their continuance
in office ...
1
(Emphasis supplied).
Under the 1973 Constitution, the same provision read:
The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of
judges of inferior courts shall be fixed by law, which shall not be decreased during their
continuance in office. ...
2
(Emphasis ours).
And in respect of income tax exemption, another provision in the same 1973 Constitution specifically
stipulated:
No salary or any form of emolument of any public officer or employee, including
constitutional officers, shall be exempt from payment of income tax.
3

The provision in the 1987 Constitution, which petitioners rely on, reads:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their salary
shall not be decreased.
4
(Emphasis supplied).
The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the
original concept of "non-diminution "of salaries of judicial officers.
The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate
such contention.
The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:
Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court
and of judges of the lower courts shall be fixed by law. During their continuance in office,
their salary shall not be diminished nor subjected to income tax. Until the National Assembly
shall provide otherwise, the Chief Justice shall receive an annual salary of _____________
and each Associate Justice ______________ pesos.
5
(Emphasis ours)
During the debates on the draft Article (Committee Report No. 18), two Commissioners presented
their objections to the provision on tax exemption, thus:
MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this
not violate the principle of the uniformity of taxation and the principle of equal protection of
the law? After all, tax is levied not on the salary but on the combined income, such that when
the judge receives a salary and it is comingled with the other income, we tax the income, not
the salary. Why do we have to give special privileges to the salary of justices?
MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or
decrease of their salary during their term. This is an indirect way of decreasing their salary
and affecting the independence of the judges.
MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the
special privilege on taxation might, in effect, be a violation of the principle of uniformity in
taxation and the equal protection clause.
6

x x x x x x x x x
MR. OPLE. x x x
Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto
Concepcion, for whom we have the highest respect, to surround the Supreme Court and the
judicial system as a whole with the whole armor of defense against the executive and
legislative invasion of their independence. But in so doing, some of the citizens outside,
especially the humble government employees, might say that in trying to erect a bastion of
justice, we might end up with the fortress of privileges, an island of extra territoriality under
the Republic of the Philippines, because a good number of powers and rights accorded to
the Judiciary here may not be enjoyed in the remotest degree by other employees of the
government.
An example is the exception from income tax, which is a kind of economic immunity, which
is, of course, denied to the entire executive department and the legislative.
7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A.
Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor
subjected to income tax" be deleted so as to "give substance to equality among the three branches
in the government.
Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the
original draft and referred to the ruling of this Court in Perfecto vs. Meer
8
that "the independence of
the judges is of far greater importance than any revenue that could come from taxing their salaries."
Commissioner Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas
stood up "in support of an amendment to the amendment with the request for a modification of the
amendment," as follows:
FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is
not enough to drop the phrase "shall not be subjected to income tax," because if that is all
that the Gentleman will do, then he will just fall back on the decision in Perfecto vs. Meer and
in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[ which
excludes them from income tax, but rather I would propose that the statement will read:
"During their continuance in office, their salary shall not be diminished BUT MAY BE
SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that the
argument seems to be that the justice and judges should not be subjected to income tax
because they already gave up the income from their practice. That is true also of Cabinet
members and all other employees. And I know right now, for instance, there are many
people who have accepted employment in the government involving a reduction of income
and yet are still subject to income tax. So, they are not the only citizens whose income is
reduced by accepting service in government.
Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico
F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner
Bernas announced:
During the suspension, we came to an understanding with the original proponent,
Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During their
continuance in office, their salary shall not be DECREASED."But this is on the understanding
that there will be a provision in the Constitution similar to Section 6 of Article XV, the General
Provisions of the 1973 Constitution, which says:
No salary or any form of emolument of any public officer or employee, including
constitutional officers, shall be exempt from payment of income tax.
So, we put a period (.) after "DECREASED" on the understanding that the salary of justices
is subject to tax.
When queried about the specific Article in the General Provisions on non-exemption from tax of
salaries of public officers, Commissioner Bernas replied:
FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions.
But at any rate, when we put a period (.) after "DECREASED," it is on the understanding that
the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore.
The amendment to the original draft, as discussed and understood, was finally approved without
objection.
THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will
be a provision under the Article on General Provisions. Could Commissioner Rosario Braid
kindly take note that the salaries of officials of the government including constitutional
officers shall not be exempt from income tax? The amendment proposed herein and
accepted by the Committee now reads as follows: "During their continuance in office, their
salary shall not be DECREASED"; and the phrase "nor subjected to income tax" is deleted.
9

The debates, interpellations and opinions expressed regarding the constitutional provision in
question until it was finally approved by the Commission disclosed that the true intent of the framers
of the 1987 Constitution, in adopting it, was to make the salaries of members of the Judiciary
taxable. The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people adopting
it should be given effect.
10
The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the people in the adoption of
the Constitution.
11
it may also be safely assumed that the people in ratifying the Constitution were
guided mainly by the explanation offered by the framers.
12
1avvphi 1
Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again
reproduced hereunder:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their salary
shall not be decreased. (Emphasis supplied).
it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation
of Justices and Judges but such rate must be higher than that which they are receiving at the time of
enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a
strained construction to read into the provision an exemption from taxation in the light of the
discussion in the Constitutional Commission.
With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income
tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs.
Meer,
13
as affirmed inEndencia vs. David
14
must be declared discarded. The framers of the
fundamental law, as the alter ego of the people, have expressed in clear and unmistakable terms the
meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted
Stated otherwise, we accord due respect to the intent of the people, through the discussions and
deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the
cost of maintaining the government and should share the burden of general income taxation
equitably.
WHEREFORE, the instant petition for Prohibition is hereby dismissed.
Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.


Footnotes
1
Section 9,Articie VIII.
2
Section 10, Article X.
3
Section 6, Article XV, General Provisions.
4
Section 10, Article VIII.
5
Record of the Constitutional Commission, Vol. I, p. 433.
6
Record of the Constitutional Commission, p. 460.
7
Ibid., at page 467,
8
85 Phil. 552 (1950).
9
Record of the Constitutional Commission, Vol. 1, p. 506.
10
Gold Creek Mining Co. vs. Rodriguez, 66 Phil. 259 (1938).
11
J.M. Tuason & Co., Inc. vs. Land Tenure Administration, No. L-21064, February 18, 1970,
31 SCRA 413.
12
Tanada, Fernando, Constitution of the Philippines, Fourth Ed., Vol. 1, p. 21.
13
85 Phil. 552 (1950).
14
93 Phil. 696 (1953).




















G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J .:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos,
1
is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily,
they ask whether the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.
2
In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and
Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number
of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained.
3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.
4
In a subsequent letter dated
10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . .
.
5
which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.
6
Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.
7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.
8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."
9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimonyof the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation.
10
It prescribes the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to which all
other laws must conform and in accordance with which all private rights must be determined and all public
authority administered.
11
Under the doctrine of constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens.
12
A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-
executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action.
13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law.
14
This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute.
15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes,
16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
17
Subsequent
legislation however does not necessarily mean that the subject constitutional provision is not, by itself,
fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing.
18
The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of enterprises fully
owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another.
19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation
20
speaks of constitutional provisions
on personal dignity,
21
the sanctity of family life,
22
the vital role of the youth in nation-building
23
the
promotion of social justice,
24
and the values of education.
25
Tolentino v. Secretary of Finance
26
refers to
the constitutional provisions on social justice and human rights
27
and on education.
28
Lastly, Kilosbayan,
Inc. v. Morato
29
cites provisions on the promotion of general welfare,
30
the sanctity of family life,
31
the
vital role of the youth in nation-building
32
and the promotion of total human liberation and
development.
33
A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission
34
explains
The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.
35
When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality.
36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City.
37
During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etatwhere an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that theFilipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands.
38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we
say that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President.
39

xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment
be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.
40

The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you,
41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL
THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony.
42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo
43

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel.
44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision by the government itself is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates.
45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command.
46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share.
47
Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism.
48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved.
49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism.
50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country.
51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.



Separate Opinions

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

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.
4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.
5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"
6
To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".
7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J ., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"
1
is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J ., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"
1
is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"
2
so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks.
3
That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno
4
to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."
5
This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente,
6
this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,
7
the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.
9
Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution
10
is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,
11
but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.
12
It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).
13
Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids."
14
The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J ., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J ., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"
1
The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.
2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.
3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution
4
on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.
5
As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.
6
Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.
7
The inquiry demands a micro-analysis of the text and the context of the provision in
question.
8

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country
25
to Filipino citizens or to corporations sixty per
cent
26
of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.
27
The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,
28
where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments.
29
By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.
30
By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,
31
the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.
32
Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.
33
The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently.
34
They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS,
35
Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees.
36
It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission
37
and the Commission on Audit.
38
As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.
39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

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

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

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.
4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.
5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"
6
To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".
7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J ., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"
1
is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J ., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"
1
is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"
2
so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks.
3
That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno
4
to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."
5
This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente,
6
this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,
7
the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.
9
Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution
10
is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,
11
but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.
12
It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).
13
Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids."
14
The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J ., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J ., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"
1
The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.
2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.
3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution
4
on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.
5
As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.
6
Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.
7
The inquiry demands a micro-analysis of the text and the context of the provision in
question.
8

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country
25
to Filipino citizens or to corporations sixty per
cent
26
of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.
27
The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,
28
where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments.
29
By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.
30
By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,
31
the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.
32
Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.
33
The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently.
34
They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS,
35
Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees.
36
It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission
37
and the Commission on Audit.
38
As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.
39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.


PANGANIBAN, J ., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Footnotes
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
2 Par I. Introduction and Highlights; Guidelines and Procedures: Second
Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.
5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.
6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-
6; id., pp. 6-7.
7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining
Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-
reliance.
25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and
high school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.
(4) Encourage non-formal, informal, and indegenous learning, independent, and out-
of-school study programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.
34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.
35 Webster's Third New International Dictionary, 1986 ed., p. 1656.
36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,
Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,
King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.
44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers
and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former Chief Justice Enrique M.
Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.
3 Sinco, Philippine Political Law, 11th ed, p. 112.
4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.
507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, 10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND
PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, 1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse discrimination in these
areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).
12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:
a. Business management expertise, tract record, and experience
b. Financial capability
c. Feasibility and acceptability of the proposed strategic plan for the
Manila Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.
2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.
3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140-
155.
4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.
13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24
SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.
Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.
25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.
27 Article XIV, section 3 of the 1973 Constitution reads:
"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National
Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.
30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).
31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee
celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property as a .national cultural
treasure," the following procedure shall be observed:
(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.
xxx xxx xxx
33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];
Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socio-
economic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.












G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J .:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos,
1
is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily,
they ask whether the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.
2
In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and
Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number
of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained.
3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.
4
In a subsequent letter dated
10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . .
.
5
which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.
6
Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.
7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.
8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."
9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimonyof the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation.
10
It prescribes the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to which all
other laws must conform and in accordance with which all private rights must be determined and all public
authority administered.
11
Under the doctrine of constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens.
12
A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-
executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action.
13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law.
14
This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute.
15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes,
16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
17
Subsequent
legislation however does not necessarily mean that the subject constitutional provision is not, by itself,
fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing.
18
The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of enterprises fully
owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another.
19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation
20
speaks of constitutional provisions
on personal dignity,
21
the sanctity of family life,
22
the vital role of the youth in nation-building
23
the
promotion of social justice,
24
and the values of education.
25
Tolentino v. Secretary of Finance
26
refers to
the constitutional provisions on social justice and human rights
27
and on education.
28
Lastly, Kilosbayan,
Inc. v. Morato
29
cites provisions on the promotion of general welfare,
30
the sanctity of family life,
31
the
vital role of the youth in nation-building
32
and the promotion of total human liberation and
development.
33
A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission
34
explains
The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.
35
When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality.
36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City.
37
During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etatwhere an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that theFilipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands.
38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we
say that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President.
39

xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment
be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.
40

The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you,
41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL
THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony.
42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo
43

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel.
44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision by the government itself is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates.
45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command.
46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share.
47
Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism.
48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved.
49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism.
50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country.
51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.



Separate Opinions

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

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.
4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.
5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"
6
To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".
7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J ., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"
1
is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J ., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"
1
is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"
2
so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks.
3
That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno
4
to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."
5
This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente,
6
this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,
7
the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.
9
Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution
10
is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,
11
but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.
12
It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).
13
Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids."
14
The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J ., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J ., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"
1
The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.
2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.
3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution
4
on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.
5
As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.
6
Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.
7
The inquiry demands a micro-analysis of the text and the context of the provision in
question.
8

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country
25
to Filipino citizens or to corporations sixty per
cent
26
of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.
27
The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,
28
where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments.
29
By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.
30
By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,
31
the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.
32
Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.
33
The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently.
34
They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS,
35
Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees.
36
It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission
37
and the Commission on Audit.
38
As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.
39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

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

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

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.
4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.
5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"
6
To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".
7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J ., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"
1
is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J ., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"
1
is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"
2
so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks.
3
That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno
4
to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."
5
This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente,
6
this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,
7
the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.
9
Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution
10
is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,
11
but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.
12
It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).
13
Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids."
14
The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J ., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J ., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"
1
The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.
2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.
3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution
4
on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.
5
As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.
6
Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.
7
The inquiry demands a micro-analysis of the text and the context of the provision in
question.
8

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country
25
to Filipino citizens or to corporations sixty per
cent
26
of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.
27
The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,
28
where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments.
29
By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.
30
By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,
31
the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.
32
Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.
33
The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently.
34
They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS,
35
Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees.
36
It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission
37
and the Commission on Audit.
38
As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.
39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.


PANGANIBAN, J ., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Footnotes
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
2 Par I. Introduction and Highlights; Guidelines and Procedures: Second
Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.
5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.
6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-
6; id., pp. 6-7.
7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining
Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-
reliance.
25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and
high school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.
(4) Encourage non-formal, informal, and indegenous learning, independent, and out-
of-school study programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.
34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.
35 Webster's Third New International Dictionary, 1986 ed., p. 1656.
36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,
Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,
King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.
44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers
and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former Chief Justice Enrique M.
Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.
3 Sinco, Philippine Political Law, 11th ed, p. 112.
4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.
507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, 10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND
PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, 1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse discrimination in these
areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).
12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:
a. Business management expertise, tract record, and experience
b. Financial capability
c. Feasibility and acceptability of the proposed strategic plan for the
Manila Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.
2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.
3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140-
155.
4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.
13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24
SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.
Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.
25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.
27 Article XIV, section 3 of the 1973 Constitution reads:
"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National
Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.
30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).
31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee
celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property as a .national cultural
treasure," the following procedure shall be observed:
(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.
xxx xxx xxx
33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];
Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socio-
economic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.

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