March/June 1997

Amendment to the Constitution

On 6 Dec 1996, Atty. Jesus S. Delfin filed with COMELEC a Petition to Amend the
Constitution to Lift Term Limits of elective Officials by Peoples Initiative The COMELEC
then, upon its approval, a.) set the time and dates for signature gathering all over the
country, b.) caused the necessary publication of the said petition in papers of general
circulation, and c.)instructed local election registrars to assist petitioners and volunteers in
establishing signing stations. On 18 Dec 1996, MD Santiago et al filed a special civil action
for prohibition against the Delfin Petition. Santiago argues that 1.) the constitutional
provision on peoples initiative to amend the constitution can only be implemented by law to
be passed by Congress and no such law has yet been passed by Congress, 2.) RA 6735
indeed provides for three systems of initiative namely, initiative on the Constitution, on
statues and on local legislation. The two latter forms of initiative were specifically provided
for in Subtitles II and III thereof but no provisions were specifically made for initiatives on the
Constitution. This omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law as pointed out by former Senator Arturo
Tolentino.
ISSUE: Whether or not RA 6735 was intended to include initiative on amendments to the
constitution and if so whether the act, as worded, adequately covers such initiative.
HELD: RA 6735 is intended to include the system of initiative on amendments to the
constitution but is unfortunately inadequate to cover that system. Sec 2 of Article 17 of the
Constitution provides: Amendments to this constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at
least there per centum of the registered voters therein. . . The Congress shall provide for
the implementation of the exercise of this right This provision is obviously not selfexecutory as it needs an enabling law to be passed by Congress. Joaquin Bernas, a
member of the 1986 Con-Con stated without implementing legislation Section 2, Art 17
cannot operate. Thus, although this mode of amending the constitution is a mode of
amendment which bypasses Congressional action in the last analysis is still dependent on
Congressional action. Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of inititative would remain entombed in
the cold niche of the constitution until Congress provides for its implementation. The people
cannot exercise such right, though constitutionally guaranteed, if Congress for whatever
reason does not provide for its implementation.
***Note that this ruling has been reversed on November 20, 2006 when ten justices of the
SC ruled that RA 6735 is adequate enough to enable such initiative. HOWEVER, this was a
mere minute resolution which reads in part:
Ten (10) Members of the Court reiterate their position, as shown by their various opinions
already given when the Decision herein was promulgated, that Republic Act No. 6735 is
sufficient and adequate to amend the Constitution thru a peoples initiative.

As such, it is insisted that such minute resolution did not become stare decisis.

Tolentino vs COMELEC
41 SCRA 702
Petitioner: ARTURO M. TOLENTINO
Respondents: Commission on Election, and the Chief Accountant, the Auditor and the
Disbursing Officer of the 1971 Constitutional Convention, Raul S. Manglapus, Jesus G.
Barrera, Pablo S. Trillana III, Victor dela Serna, Marcelo B. Fernan, Jose Y. Feria,
Leonardo Siguin Reyna, Victor F. Ortega and Juan V. Borra

Facts
The case is a petition for prohibition to restrain respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be, submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of
law for being violative of the Constitution of the Philippines. The Constitutional Convention
of 1971 came into being by virtue of two resolutions of the Congress of the Philippines
approved in its capacity as a constituent assembly convened for the purpose of calling a
convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the
joint sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The
delegates to the said Convention were all elected under and by virtue of said resolutions
and the implementing legislation thereof, Republic Act 6132.

Issue
Is it within the powers of the Constitutional Convention of 1971 to order the holding of a
plebiscite for the ratification of the proposed amendment/s?

Decision
The Court holds that all amendments to be proposed must be submitted to the people in a
single "election" or plebiscite. We hold that the plebiscite being called for the purpose of
submitting the same for ratification of the people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts of the Convention and the
respondent Comelec in that direction are null and void. lt says distinctly that either Congress
sitting as a constituent assembly or a convention called for the purpose "may propose
amendments to this Constitution,". The same provision also as definitely provides that "such
amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their

ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may
be held to ratify any amendment or amendments proposed by the same constituent
assembly of Congress or convention, and the provision unequivocably says "an election"
which
means
only
one.
The petition herein is granted. Organic Resolution No. 1 of the Constitutional Convention of
1971 and the implementing acts and resolutions of the Convention, insofar as they provide
for the holding of a plebiscite on November 8, 1971, as well as the resolution of the
respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of
the Constitutional Convention are hereby enjoined from taking any action in compliance with
the said organic resolution. In view of the peculiar circumstances of this case, the Court
declares this decision immediately executory.

G.R. No. 43530, People v.

Lamahang, 61 Phil. 703
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
August 3, 1935
G.R. No. 43530
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four months
of prision correccional and to an additional penalty of ten years and one day
of prision mayor for being an habitual delinquent, with the accessory
penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening

another from the wall, when the policeman showed up, who instantly arrested
him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation
to its objective is ambiguous, is not a juridical fact from the standpoint of the
Penal Code. There is no doubt that in the case at bar it was the intention of
the accused to enter Tan Yu's store by means of violence, passing through the
opening which he had started to make on the wall, in order to commit an
offense which, due to the timely arrival of policeman Tomambing, did not
develop beyond the first steps of its execution. But it is not sufficient, for the
purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its
unavoidable connection, like the logical and natural relation of the cause and
its effect, with the deed which, upon its consummation, will develop into one
of the offenses defined and punished by the Code; it is necessary to prove
that said beginning of execution, if carried to its complete termination
following its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order
that the simple act of entering by means of force or violence another person's
dwelling may be considered an attempt to commit this offense, it must be
shown that the offender clearly intended to take possession, for the purpose

of gain, of some personal property belonging to another. In the instant case,

there is nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the decision,
that the accused on the day in question was making an opening by means of
an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical
conclusion that his evident intention was to enter by means of force said store
against the will of its owner. That his final objective, once he succeeded in
entering the store, was to rob, to cause physical injury to the inmates, or to
commit any other offense, there is nothing in the record to justify a concrete
finding.
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the action
intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any
doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation , that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable act, must not and can not
furnish grounds by themselves for attempted nor frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury. This must
have been the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of the felony

directly by overt acts, that is to say, that the acts performed must be such that,
without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts
leading to the commission of the offense, are not punished except when they
are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of March 21,
1892 that in order to declare that such and such overt acts constitute an
attempted offense it is necessary that their objective be known and
established, or that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective
and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
store by breaking a board and unfastening another for the purpose of entering
said store ... and that the accused did not succeed in entering the store due to
the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the
accused ... ." Under the circumstances of this case the prohibition of the
owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano,
31 Phil., 509; U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil.,

615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against
the accused must be taken into consideration the aggravating circumstances
of nighttime and former convictions, inasmuch as the record shows that
several final judgments for robbery and theft have been rendered against him
and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating
circumstance inasmuch as this is the very fact which in this case constitutes
the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating
circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby
held guilty of attempted trespass to dwelling, committed by means of force,
with the aforesaid aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the accessory penalties
thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.