Professional Documents
Culture Documents
That the above cited memorandum dated December 1, 1986 was signed
by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
MELENCIO-HERRERA, J.:
SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By
that date, therefore, the Provisional Constitution must be deemed to have
been superseded. Having become inoperative, respondent OIC Governor
could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially
considering that the Barangay Election Act of 1982 declares it "a policy of the
State to guarantee and promote the autonomy of the barangays to ensure
their fullest development as self-reliant communities. 2 Similarly, the 1987
Constitution ensures the autonomy of local governments and of political
subdivisions of which the barangays form a part, 3 and limits the President's
power to "general supervision" over local governments. 4 Relevantly, Section
8, Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law,
therefore, the term of office of six (6) years provided for in the Barangay
Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between
the term of six (6) years for elective Barangay officials and the 1987
Constitution, and the same should, therefore, be considered as still
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution,
reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations
letters of instructions, and other executive issuances not inconsistent,
with this Constitution shall remain operative until amended, repealed or
revoked.
date its ratification was proclaimed per Proclamation No. 58 of the President
of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds
that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the
plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take
effect on the date its ratification shall have been ascertained and not at the
time the people cast their votes to approve or reject it." This view was
actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view
that the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission
fully supports the Court's judgment. It shows that the clear, unequivocal and
express intent of the Constitutional Conunission in unanimously approving
(by thirty-five votes in favor and none against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the
ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite
and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in
adopting the Constitution when they cast their votes on the date of the
plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the
date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam
President. We present the Constitution to a plebiscite, the people exercise
their right to vote, then the votes are canvassed by the Commission on
Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
what would be, in clear terms, the date when the Constitution is supposed
to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance, on
January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the
act of saying "yes" is done when one casts his ballot.
COMELEC itself upon the completion of the canvass of the results of the
plebiscite, and I opted for the President.
MR. MAAMBONG. In other words, the President may or may not make
the proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I would
only add that when we say that the date of effectivity is on the day of the
casting of the votes, what we mean is that the Constitution takes effect on
every single minute and every single second of that day, because the Civil
Code says a day has 24 hours.So that even if the votes are cast in the
morning, the Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of
Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?
Thank you,
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there
While I agree that the one-year deadline prescribed by Section 2, Article III of
the Provisional Constitution with respect to the tenure of government
functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the
1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such appointment is made within a
period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious
doubts whether or not that cut-off period began on February 2, 1987, the
date of the plebiscite held to approve the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date
its ratification shall have been ascertained, and not at the time the people
cast their votes to approve or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite, when the will of the people
as of that time, had not, and could not have been, vet determined.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
I have no doubt that between February 2, and February 11, 1987 the
government performed acts that would have been valid under the Provisional
Constitution but would otherwise have been void under the 1987 Charter. I
recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy,
Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and
Debates, pages 620-623; emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty
forty-five votes in favor and two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L.
Benipayo, Minerva G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus
Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr., and their
appointments bear various dates from January 9, 1987 to January 31,
1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer,
Feb. 3,1987, p. 1, cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.
EN BANC
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 inoked 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
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:
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.
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. 37During 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
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
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.
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,
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 selfexecutory. 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. 3That, 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.
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, 13the 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, 31the
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.
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.
EN BANC
G.R. No. 160261
ERNESTO
B.
FRANCISCO,
JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG
PILIPINO,
INC.,
ITS
OFFICERS
AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C.
TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME
N.
SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.
There may indeed be some legitimacy to the characterization that the
present controversy subject of the instant petitions whether the filing of the
second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
with the House of Representatives falls within the one year bar provided in
the Constitution, and whether the resolution thereof is a political question
has resulted in a political crisis. Perhaps even more truth to the view that it
was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government
by no means prescribes for absolute autonomy in the discharge by each of
that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of
each of these three branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for
the good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting,
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. Impeachment
shall be initiated only by a verified
complaint for impeachment filed
by any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement
by any Member thereof or by a
verified complaint or resolution of
impeachment filed by at least onethird (1/3) of all the Members of
the House.
RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment
Proceedings
Deemed
Initiated. In cases where a
Member of the House files a
verified complaint of impeachment
or a citizen files a verified
complaint that is endorsed by a
Member of the House through a
resolution of endorsement against
an
impeachable
officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint
and/or
resolution
against such official, as the case
may be, is sufficient in substance,
or on the date the House votes to
overturn or affirm the finding of the
said Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the
House, impeachment
proceedings
are
deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No
impeachment proceedings shall
be initiated against the same
official more than once within the
period of one (1) year.
Section
17. Bar
Against
Initiation Of Impeachment
Proceedings. Within a period of
one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section
16
hereof,
no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the
original;
emphasis
and
underscoring supplied)
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections
16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null
and void and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.
Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions; (b)
require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November 5,
2003.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263,
the first three of the eighteen which were filed before this Court, 18 prayed for
the issuance of a Temporary Restraining Order and/or preliminary injunction
to prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null
and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition,
petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration by
the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of
fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of quorum, 19 and
as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b)
require respondent House of Representatives and the Senate, as well as the
Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5,
2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others acting for and in
their behalf to refrain from committing acts that would render the petitions
moot.
f) constitutionality of the House Rules on Impeachment vis-avis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the threshold and novel
issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential prerequisites for the exercise of the power of judicial review have been fulfilled;
and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has "been
set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief
Justice Marshall, to wit:
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment
complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of
political questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and other
matters related to the operation and effect of martial law failed because
the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters of
this nature, by claiming that such matters constitute a political
question.35 (Italics in the original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled
principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for
its meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained. They are to be given their ordinary meaning except
where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution
is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Thus these are the cases where the need for construction is reduced to
a minimum.37 (Emphasis and underscoring supplied)
In other words, the court must harmonize them, if practicable, and must
lean in favor of a construction which will render every word operative,
rather than one which may make the words idle and
nugatory.45 (Emphasis supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:
If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to
them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is
of the same opinion, citing transcendental importance and the wellentrenched rule exception that, when the real party in interest is unable to
vindicate his rights by seeking the same remedies, as in the case of the
Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction
of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure 73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest
has been noted by authorities thus: "It is important to note . . . that
standing because of its constitutional and public policy underpinnings,
is very different from questions relating to whether a particular plaintiff
is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating
to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the public
interest. Hence the question in standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether
he is "the party who would be benefited or injured by the judgment, or
the 'party entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of the
petitioners before us asserts a violation of the personal rights of the Chief
Justice. On the contrary, they invariably invoke the vindication of their own
rights as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession which were
supposedly violated by the alleged unconstitutional acts of the House of
Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is
In not a few cases, this Court has in fact adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence
of such interest, it not being one of which courts can take judicial notice. In
petitioner Vallejos' case, he failed to allege any interest in the case. He does
not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules
of Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts
when the applicant shows facts which satisfy the requirements of the law
authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since,
save for one additional issue, they raise the same issues and the same
standing, and no objection on the part of petitioners Candelaria, et. al. has
been interposed, this Court as earlier stated, granted the Motion for Leave of
Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking
their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives
is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed
a "Petition-in-Intervention with Leave to Intervene" to raise the additional
issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the
Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the
Philippines, Inc. possess a legal interest in the matter in litigation the
respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives.
Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted and he
was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
denied for, while he asserts an interest as a taxpayer, he failed to meet the
standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in
government was that the issue was a political question and that the
court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to
January 15, the vast majority ratified the draft of the Constitution. Note
that all members of the Supreme Court were residents of Manila, but
none of them had been notified of any referendum in their respective
places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big
difference between a referendum and a plebiscite. But another
group of justices upheld the defense that the issue was a political
question. Whereupon, they dismissed the case. This is not the
only major case in which the plea of "political question" was set
up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because
the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power? What
is a political question?
The Supreme Court, like all other courts, has one main function: to
settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are guaranteed
by law but cannot be enforced by a judiciary party. In a decided case, a
husband complained that his wife was unwilling to perform her duties
as a wife. The Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband.
There are some rights guaranteed by law, but they are so personal that
to enforce them by actual compulsion would be highly derogatory to
human dignity."
This is why the first part of the second paragraph of Section I provides
that:
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme
Court has, also another important function. The powers of
government are generally considered divided into three branches:
the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others.
Because of that supremacy power to determine whether a given
law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion
of the 1986 Constitutional Commission shows that the framers could find no
better way to approximate the boundaries of betrayal of public trust and other
high crimes than by alluding to both positive and negative examples of both,
without arriving at their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable
political question which is beyond the scope of its judicial power under
Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional
or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that
course will be adopted and the constitutional question will be
left for consideration until a case arises in which a decision
upon such question will be unavoidable.116 [Emphasis and
underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question
are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the
case itself.118[Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by
the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is
applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue
of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule
of constitutional law touching on the separate and distinct matter of
tribunal to which the controversy may be referred." 126 Otherwise, this Court
would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is dutybound to take cognizance of the instant petitions. 127 In the august words
of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because
no other office has the authority to do so. 128 On the occasion that this Court
had been an interested party to the controversy before it, it has acted upon
the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his]
appointment to the office, the public has laid on [a member of the judiciary]
their confidence that [he] is mentally and morally fit to pass upon the merits
of their varied contentions. For this reason, they expect [him] to be fearless
in [his] pursuit to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral fiber strong enough to
resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case ofAbbas v. Senate Electoral Tribunal.131 In
that case, the petitioners filed with the respondent Senate Electoral Tribunal
a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that
all of them were interested parties to said case as respondents therein. This
would have reduced the Tribunal's membership to only its three JusticesMembers whose disqualification was not sought, leaving them to decide the
matter. This Court held:
Where, as here, a situation is created which precludes the substitution
of any Senator sitting in the Tribunal by any of his other colleagues in
the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Senators.
To our mind, this is the overriding consideration that the Tribunal be
not prevented from discharging a duty which it alone has the power to
perform, the performance of which is in the highest public interest as
evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senatorselect,
six of whom would inevitably have to sit in judgment thereon. Indeed,
such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be
at stake. Yet the Constitution provides no scheme or mode for settling
such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such
situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices
and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in
the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as
6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by
the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the
operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in
the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest
in judicial hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure of
this Court to enforce its Resolution against Congress would result in the
diminution of its judicial authority and erode public confidence and faith in the
judiciary.
Such an argument, however, is specious, to say the least. As correctly stated
by the Solicitor General, the possibility of the occurrence of a constitutional
crisis is not a reason for this Court to refrain from upholding the Constitution
in all impeachment cases. Justices cannot abandon their constitutional
duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive
act is not regarded as settled until the Supreme Court has passed upon
the constitutionality of the act involved, the judgment has not only
juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of
votes. Frequently, failure to act explicitly, one way or the other, itself
constitutes a decision for the respondent and validation, or at least
quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and
"in the end there were not enough votes either to grant the petitions, or to
sustain respondent's claims,"140 the pre-existing constitutional order was
disrupted which paved the way for the establishment of the martial law
regime.
Substituting the word public officers for judges, this Court is well guided by
the doctrine in People v. Veneracion, towit:141
Obedience to the rule of law forms the bedrock of our system of justice.
If [public officers], under the guise of religious or political beliefs were
allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes the exercise
of broad discretionary powers by those acting under its authority. Under
this system, [public officers] are guided by the Rule of Law, and ought
"to protect and enforce it without fear or favor," resist encroachments by
governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality
of
the
for
Impeachment
adopted by the 12th Congress
Rules
of
Procedure
Proceedings
During the oral arguments before this Court, Father Bernas clarified that the
word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in
the second sentence is "impeachment proceeding." Following the principle
of reddendo singuala sinuilis, the term "cases" must be distinguished from
the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that
the House, by a vote of one-third of all its members, can bring a case to the
Senate. It is in that sense that the House has "exclusive power" to initiate all
cases of impeachment. No other body can do it. However, before a decision
is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end.
It takes place not in the Senate but in the House and consists of several
steps: (1) there is the filing of a verified complaint either by a Member of the
House of Representatives or by a private citizen endorsed by a Member of
the House of the Representatives; (2) there is the processing of this
complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the
complaint, the resolution must be forwarded to the House for further
processing; and (4) there is the processing of the same complaint by the
House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the
members. If at least one third of all the Members upholds the complaint,
Articles of Impeachment are prepared and transmitted to the Senate. It is at
this point that the House "initiates an impeachment case." It is at this point
that an impeachable public official is successfully impeached. That is, he or
she is successfully charged with an impeachment "case" before the Senate
as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not
initiated when the complaint is transmitted to the Senate for trial because
that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding"
initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The
action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice for action.
This is the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote of
at least one-third of all the Members of the House shall be necessary
toinitiate impeachment proceedings," this was met by a proposal to delete
the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus
the line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once within
a period of one year," it means that no second verified complaint may be
accepted and referred to the Committee on Justice for action. By his
Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution which said
rules were intended to effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from
receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The
vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of
either House of Congress to interpret its rules and that it was the best judge
of what constituted "disorderly behavior" of its members. However, in Paceta
v. Secretary of the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and quoting Justice
Brandeis in United States v. Smith,151 declared that where the construction to
be given to a rule affects persons other than members of the Legislature, the
question
becomes
judicial
in
nature.
In Arroyo
v.
De
Venecia,152 quoting United States v. Ballin, Joseph & Co., 153 Justice Vicente
Mendoza, speaking for this Court, held that while the Constitution empowers
each house to determine its rules of proceedings, it may not by its rules
ignore constitutional restraints or violate fundamental rights, and further that
there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be
attained. It is only within these limitations that all matters of method are open
to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion,
was even more emphatic as he stressed that in the Philippine setting there is
even more reason for courts to inquire into the validity of the Rules of
Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will trivialize
the principle of separation of power if we assume jurisdiction over
he case at bar. Even in the United States, the principle of separation of
power is no longer an impregnable impediment against the interposition
the 1935 and 1972 Constitutions. It was not also xeroxed from the
US Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the
political question doctrine. Led by the eminent former Chief Justice
Roberto Concepcion, the CONCOM expanded and sharpened the
checking powers of the judiciary vis--vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court
is not a mere power which it can decline to exercise. Precisely to
deter this disinclination, the Constitution imposed it as a duty of
this Court to strike down any act of a branch or instrumentality of
government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or
wrongly, the Constitution has elongated the checking powers of this
Court against the other branches of government despite their more
democratic character, the President and the legislators being elected
by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts
of justice. . . to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government' constitutes the
capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis--vis the other branches of government. This
provision was dictated by our experience under martial law which
taught us that a stronger and more independent judiciary is needed to
abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new
Constitution transformed this Court from passivity to activism. This
transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially
determining what it cannot do; under the 1987 Constitution, there is
a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not do
but what itmust do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to
this new constitutional provision as the case at bar once more calls us
to define the parameters of our power to review violations of the rules
of the House. We will not be true to our trust as the last bulwark
against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not
defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of
judicial power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign jurisprudence. In
resolving the case at bar, the lessons of our own history should provide
us the light and not the experience of foreigners. 157 (Italics in the
original emphasis and underscoring supplied)
argued to take no action of any kind and form with respect to the prosecution
by the House of Representatives of the impeachment complaint against the
subject respondent public official. When the present petitions were knocking
so to speak at the doorsteps of this Court, the same clamor for noninterference was made through what are now the arguments of "lack of
jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting
the Court from any move that may have a bearing on the impeachment
proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls
under the Court's jurisdiction, no other course of action can be had but for it
to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this
Court to assert judicial dominance over the other two great branches of the
government. Rather, the raison d'etre of the judiciary is to complement the
discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society
upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality
of the impeachment proceedings against the Chief Justice, the members of
this Court have actually closed ranks to protect a brethren. That the
members' interests in ruling on said issue is as much at stake as is that of
the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions.
This Court has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted
to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official
act as tested by the limits set by the Constitution? Of course, there are rules
on the inhibition of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now from the suit
at bar is to regard the Supreme Court as likely incapable of impartiality when
one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as essential
to the law's moral authority and that of its agents to secure respect for and
obedience to its commands. Perhaps, there is no other government branch
or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning
The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the Constitution
in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important
that it went through this crucible of a democratic process, if only to discover
that it can resolve differences without the use of force and aggression upon
each other.
SO ORDERED.
Bellosillo
and
Tinga,
JJ., see
separate
opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate
concurring
opinion.
Quisumbing,
J., concurring
separate
opinion
received.
Carpio,
J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate
opinion
of
J.
Vitug.
Corona,
J., will
write
a
separate
concurring
opinion.
Azcuna, J., concur in the separate opinion.
EN BANC
G.R. No. L-28196
RAMON
A.
GONZALES, petitioner,
vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.
G.R. No. L-28224
November 9, 1967
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been
approved by a vote of three-fourths of all the members of the Senate and of
the House of Representatives voting separately. This, notwithstanding, it is
urged that said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments,
as well as the resolution calling a convention to propose amendments, are,
at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose
amendments or call a convention therefore but may not avail of both that
is to say, propose amendment and call a convention at the same time;
4. The spirit of the Constitution demands that the election, in which proposals
for amendment shall be submitted to the people for ratification, must be held
under such conditions which, allegedly, do not exist as to give the
people a reasonable opportunity to have a fair grasp of the nature and
implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution,
which provides:
The House of Representatives shall be composed of not more
than one hundred and twenty Members who shall be apportioned
among the several provinces as nearly as may be according to
the number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall
have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no
apportionment having been made within three (3) years thereafter, the
Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within
three years after the enumeration or census made in 1960. It did actually
pass a bill, which became Republic Act No. 3040,17 purporting to make said
apportionment. This Act was, however, declared unconstitutional, upon the
ground that the apportionment therein undertaken had not been made
according to the number of inhabitants of the different provinces of the
Philippines.18
Moreover, we are unable to agree with the theory that, in view of the failure
of Congress to make a valid apportionment within the period stated in the
Constitution, Congress became an "unconstitutional Congress" and that, in
consequence thereof, the Members of its House of Representatives are de
facto officers. The major premise of this process of reasoning is that the
constitutional provision on "apportionment within three years after the return
of every enumeration, and not otherwise," is mandatory. The fact that
Congress is under legal obligation to make said apportionment does not
justify, however, the conclusion that failure to comply with such obligation
rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers.
Petitioners do not allege that the expiration of said three-year period without
a reapportionment, had the effect of abrogating or repealing the legal
provision creating Congress, or, at least, the House of Representatives, and
are not aware of any rule or principle of law that would warrant such
conclusion. Neither do they allege that the term of office of the members of
said House automatically expired or that they ipso facto forfeited their seats
in Congress, upon the lapse of said period for reapportionment. In fact,
neither our political law, nor our law on public officers, in particular, supports
the view that failure to discharge a mandatory duty, whatever it may be,
would automatically result in the forfeiture of an office, in the absence of a
statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not repealed in
consequence of the failure of said body to make an apportionment within
three (3) years after the census of 1960. Inasmuch as the general elections
in 1965 were presumably held in conformity with said Election Law, and the
legal provisions creating Congress with a House of Representatives
composed of members elected by qualified voters of representative districts
as they existed at the time of said elections remained in force, we can not
see how said Members of the House of Representatives can be regarded
as de facto officers owing to the failure of their predecessors in office to
make a reapportionment within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the
President, the Vice-President, the Justices of the Supreme Court and the
Auditor General for, inter alia, culpable violation of the Constitution,20 the
enforcement of which is, not only their mandatory duty, but also, their main
function. This provision indicates that, despite the violation of such
mandatory duty, the title to their respective offices remains unimpaired, until
dismissal or ouster pursuant to a judgment of conviction rendered in
accordance with Article IX of the Constitution. In short, the loss of office or
the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are
merely de facto officers, it would not follow that the contested resolutions and
Republic Act No. 4913 are null and void. In fact, the main reasons for the
existence of the de facto doctrine is that public interest demands that acts of
persons holding, under color of title, an office created by a valid statute be,
likewise, deemed valid insofar as the public as distinguished from the
officer in question is concerned.21 Indeed, otherwise, those dealing with
officers and employees of the Government would be entitled to demand from
them satisfactory proof of their title to the positions they hold,before dealing
with them, or before recognizing their authority or obeying their commands,
even if they should act within the limits of the authority vested in their
respective offices, positions or employments.22 One can imagine this great
inconvenience, hardships and evils that would result in the absence of
the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo
warranto proceedings. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer.24 And the reasons are
obvious: (1) it would be an indirect inquiry into the title to the office; and (2)
the acts of a de facto officer, if within the competence of his office, are valid,
insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because
the acts therein involved have not been completed and petitioners herein are
not third parties. This pretense is untenable. It is inconsistent withTayko vs.
Capistrano.25 In that case, one of the parties to a suit being heard before
Judge Capistrano objected to his continuing to hear the case, for the reason
that, meanwhile, he had reached the age of retirement. This Court held that
the objection could not be entertained, because the Judge was at least, a de
facto Judge, whose title can not be assailed collaterally. It should be noted
that Tayko was not a third party insofar as the Judge was concerned. Tayko
was one of the parties in the aforementioned suit. Moreover, Judge
Capistrano had not, as yet, finished hearing the case, much less rendered
decision therein. No rights had vested in favor of the parties, in consequence
of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to
say, insofar as Congress is concerned, its acts, as regards the Resolutions
herein contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either
propose amendments to the Constitution or call a convention for that
purpose, but it can not do both, at the same time. This theory is based upon
the fact that the two (2) alternatives are connected in the Constitution by the
disjunctive "or." Such basis is, however, a weak one, in the absence of other
circumstances and none has brought to our attention supporting the
conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes,
been held to mean "and," or vice-versa, when the spirit or context of the law
warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the
constitutional provision on Congress, to be submitted to the people for
ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a
convention in 1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No. 2
is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments
proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification
several years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3) resolutions
were passed on the same date, they were taken up and put to a vote
separately, or one after the other. In other words, they were notpassed at the
same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different Congresses to
approve the contested Resolutions, or of the same Congress to pass the
same in, different sessions or different days of the same congressional
session. And, neither has any plausible reason been advanced to justify the
denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention
to propose amendments, why not let the whole thing be submitted to said
convention, instead of, likewise, proposing some specific amendments, to be
submitted for ratification before said convention is held? The force of this
argument must be conceded. but the same impugns the wisdom of the
action taken by Congress, not its authority to take it. One seeming purpose
thereof to permit Members of Congress to run for election as delegates to
the constitutional convention and participate in the proceedings therein,
without forfeiting their seats in Congress. Whether or not this should be done
is a political question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in
a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of threefourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that three
previous amendments to the Constitution had been submitted to the people
for ratification in special elections merely shows that Congress deemed it
best to do so under the circumstances then obtaining. It does not negate its
authority to submit proposed amendments for ratification in general
elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's approval
independently of the election of public officials. And there is no denying the
fact that an adequate appraisal of the merits and demerits proposed
amendments is likely to be overshadowed by the great attention usually
commanded by the choice of personalities involved in general elections,
particularly when provincial and municipal officials are to be chosen. But,
then, these considerations are addressed to the wisdom of holding a
plebiscite simultaneously with the election of public officer. They do not deny
the authority of Congress to choose either alternative, as implied in the term
"election" used, without qualification, in the abovequoted provision of the
Constitution. Such authority becomes even more patent when we consider:
(1) that the term "election," normally refers to the choice or selection of
candidates to public office by popular vote; and (2) that the word used in
Article V of the Constitution, concerning the grant of suffrage to women is,
not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV
of the Constitution, should be construed as meaning a special election.
Some members of the Court even feel that said term ("election") refers to a
"plebiscite," without any "election," general or special, of public officers. They
opine that constitutional amendments are, in general, if not always, of such
important, if not transcendental and vital nature as to demand that the
attention of the people be focused exclusively on the subject-matter thereof,
so that their votes thereon may reflect no more than their intelligent, impartial
and considered view on the merits of the proposed amendments,
unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let
alone the partisan political considerations that are likely to affect the
selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of
which should be promoted. The ideal conditions are, however, one thing. The
question whether the Constitution forbids the submission of proposals for
amendment to the people except under such conditions, is another thing.
Much as the writer and those who concur in this opinion admire the contrary
view, they find themselves unable to subscribe thereto without, in effect,
reading into the Constitution what they believe is not written thereon and can
not fairly be deduced from the letter thereof, since the spirit of the law should
not be a matter of sheer speculation.
The majority view although the votes in favor thereof are insufficient to
declare Republic Act No. 4913 unconstitutional as ably set forth in the
opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People
Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March
16, 1967, so that, by November 14, 1967, our citizenry shall have had
practically eight (8) months to be informed on the amendments in question.
Then again, Section 2 of Republic Act No. 4913 provides:
(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building
and in every polling place not later than October 14, 1967," and that said
copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling
place, to be made available for examination by the qualified electors during
election day;"
(4) that "when practicable, copies in the principal native languages, as may
be determined by the Commission on Elections, shall be kept in each polling
place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the principal
native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the
ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals for
amendment be "submitted to the people for their ratification," and that said
measures are manifestly insufficient, from a constitutional viewpoint, to
inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people of
the subject submitted to them for ratification, from the original Constitution
down to the Parity Amendment. Thus, referring to the original Constitution,
Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be
published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said
election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office building
and in each polling place not later than the twenty-second day of
April, nineteen hundred and thirty-five, and shall remain posted
therein continually until after the termination of the election. At
least ten copies of the Constitution with the Ordinance appended
thereto, in English and in Spanish, shall be kept at each polling
place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior
shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth
Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues
at least fifteen days prior to said election, and the said Article V
shall be posted in a conspicuous place in each municipal and
provincial office building and in each polling place not later than
the twenty-second day of April, nineteen and thirty-seven, and
shall remain posted therein continually until after the termination
of the plebiscite. At least ten copies of said Article V of the
Constitution, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors
during the plebiscite. Whenever practicable, copies in the
principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept in each polling place.
The system of checks and balances underlying the judicial power to strike
down acts of the Executive or of Congress transcending the confines set
forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme within
its own sphere. The determination of the conditions under which the
proposed amendments shall be submitted to the people is concededly a
matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in
enacting Republic Act No. 4913. Presumably, it could have done something
better to enlighten the people on the subject-matter thereof. But, then, no law
is perfect. No product of human endeavor is beyond improvement.
Otherwise, no legislation would be constitutional and valid. Six (6) Members
of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the
spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic
Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions
in these two (2) cases must be, as they are hereby, dismiss and the writs
therein prayed for denied, without special pronouncement as to costs. It is so
ordered.
Makalintal
and
Bengzon,
J.P.,
JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on
the question of jurisdiction.
xxx
xxx
Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and
Pilipino and shall be in the size and form prescribed by the
Commission on Elections:Provided, however, That at the back of
said ballot there shall be printed in full Resolutions of both Houses
of Congress Numbered One and Three, both adopted on March
sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing
on the face of the ballot shall be as follows:
the provisions before and after said amendments, instead of printing at the
back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this Court
under its powers to review an Act of Congress to determine its conformity to
the fundamental law. For though the Constitution leaves Congress free to
propose whatever Constitutional amendment it deems fit, so that
the substance or content of said proposed amendment is a matter of policy
and wisdom and thus a political question, the Constitution nevertheless
imposes requisites as to the manner orprocedure of proposing such
amendments, e.g., the three-fourths vote requirement. Said procedure or
manner, therefore, from being left to the discretion of Congress, as a matter
of policy and wisdom, is fixed by the Constitution. And to that extent, all
questions bearing on whether Congress in proposing amendments followed
the procedure required by the Constitution, is perforce justiciable, it not being
a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly
does not bear him on the point. It nowhere requires that the ratification be
thru an election solely for that purpose. It only requires that it be at "an
election at which the amendments are submitted to the people for their
ratification." To join it with an election for candidates to public office, that is, to
make it concurrent with such election, does not render it any less an election
at which the proposed amendments are submitted to the people for their
ratification. To prohibition being found in the plain terms of the Constitution,
none should be inferred. Had the framers of requiring Constitution thought of
requiring a special election for the purpose only of the proposed
amendments, they could have said so, by qualifying the phrase with some
word such as "special" or "solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it
would not have been better to provide for a separate election exclusively for
the ratification of the proposed amendments. The point however is that such
separate and exclusive election, even if it may be better or wiser, which
again, is not for this Court to decide, is not included in the procedure
required by the Constitution to amend the same. The function of the Judiciary
is "not to pass upon questions of wisdom, justice or expediency of
legislation".2 It is limited to determining whether the action taken by the
Legislative Department has violated the Constitution or not. On this score, I
am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for
not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate and of the House
of Representatives voting separately, may propose amendments
to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election to which
the amendments are submitted to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the
term "propose amendment" is meant to determine WHAT said amendment
shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and
3 already did that. If, on the other hand, it means, or also means, to provide
for how, when, and by what means the amendments shall be submitted to
the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one
intended. Said Section has two sentences: in the first, it requires the 3/4
voting in joint session, for Congress to "propose amendments". And then in
the second sentence, it provides that "such amendments . . . shall be
submitted to the people for their ratification". This clearly indicates that by the
term "propose amendments" in the first sentence is meant to frame the
substance or the content or the WHAT-element of the amendments; for it is
this and this alone that is submitted to the people for their ratification. The
details of when the election shall be held for approval or rejection of the
proposed amendments, or the manner of holding it, are not submitted for
ratification to form part of the Constitution. Stated differently, the plain
language of Section 1, Art. XV, shows that the act of proposing amendments
is distinct from albeit related to that of submitting the amendments to
the people for their ratification; and that the 3/4 voting requirement applies
only to the first step, not to the second one.
It follows that the submission of proposed amendments can be done thru an
ordinary statute passed by Congress. The Constitution does not expressly
state by whom the submission shall be undertaken; the rule is that a power
not lodged elsewhere under the Constitution is deemed to reside with the
legislative body, under the doctrine of residuary powers. Congress therefore
validly enacted Republic Act 4913 to fix the details of the date and manner of
submitting the proposed amendments to the people for their ratification.
Since it does not "propose amendments" in the sense referred to by Sec. 1,
Art. XV of the Constitution, but merely provides for how and when the
amendments, already proposed, are going to be voted upon, the same does
not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the
Constitution. Furthermore, Republic Act 4913 is an appropriation measure.
Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec.
18, Art. VI of the Constitution states that "All appropriation . . . bills shall
originate exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session, reinforcing
the view that Sec. 1, Art. XV does not apply to such a measure providing for
the holding of the election to ratify the proposed amendments, which must
perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against
substantive due process. An examination of the provisions of the law shows
no violation of the due process clause of the Constitution. The publication in
the Official Gazette at least 20 days before the election, the posting of
notices in public buildings not later than October 14, 1967, to remain posted
until after the elections, the placing of copies of the proposed amendments in
the polling places, aside from printing the same at the back of the ballot,
provide sufficient opportunity to the voters to cast an intelligent vote on the
proposal. Due process refers only to providing fair opportunity; it does not
guarantee that the opportunity given will in fact be availed of; that is the lookout of the voter and the responsibility of the citizen. As long as fair and
reasonable opportunity to be informed is given, and it is, the due process
clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the
printing of the full proposed amendments at the back of the ballot instead of
the substance thereof at the face of the ballot, do not deprive the voter of fair
opportunity to be informed. The present wording of the Constitution is not
being veiled or suppressed from him; he is conclusively presumed to know
them and they are available should he want to check on what he is
conclusively presumed to know. Should the voters choose to remain ignorant
of the present Constitution, the fault does not lie with Congress. For
opportunity to familiarize oneself with the Constitution as it stands has been
available thru all these years. Perhaps it would have been more convenient
for the voters if the present wording of the provisions were also to be printed
on the ballot. The same however is a matter of policy. As long as the method
adopted provides sufficiently reasonable chance to intelligently vote on the
amendments, and I think it does in this case, it is not constitutionally
defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of the
proposed amendments. These are for the people in their sovereign capacity
to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both call a
convention and propose amendments; second, that the present Congress is
a de facto one, since no apportionment law was adopted within three years
from the last census of 1960, so that the Representatives elected in 1961
are de facto officers only. Not being de jure, they cannot propose
amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or", however,
is frequently used as having the same meaning as "and" particularly in
permissive, affirmative sentences so that the interpretation of the word "or"
as "and" in the Constitution in such use will not change its meaning
(Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And
it should be pointed out that the resolutions proposing amendments (R.B.H.
Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2).
Surely, if Congress deems it better or wise to amend the Constitution before
a convention called for is elected, it should not be fettered from doing so. For
our purposes in this case, suffice it to note that the Constitution does not
prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration, and
not otherwise". It however further states in the next sentence: "Until such
apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present
assembly districts." The failure of Congress, therefore, to pass a valid
redistricting law since the time the above provision was adopted, does not
render the present districting illegal or unconstitutional. For the Constitution
itself provides for its continuance in such case, rendering legal and de
jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic Act
4913, and fully concur with the opinion of the Chief Justice.
At the same time, without impugning the motives of Congress, which cannot
be judicially inquired into at any rate, it is not beyond the realm of possibility
that a failure to observe the requirements of Article XV would occur. In the
event that judicial intervention is sought, to rely automatically on the theory of
political question to avoid passing on such a matter of delicacy might under
certain circumstances be considered, and rightly so, as nothing less than
judicial abdication or surrender.
And so, our approach to the problem of the mechanics of submission for
ratification of amendments is thatreasoning on the basis of the spirit of the
Constitution is just as important as reasoning by a strict adherence to the
phraseology thereof. We underscore this, because it is within the realm of
possibility that a Constitution maybe overhauled. Supposing three-fourths of
the Constitution is to be amended. Or, the proposal is to eliminate the all
important; Bill of Rights in its entirety. We believe it to be beyond debate that
in some such situations the amendments ought to call for a constitutional
convention rather than a legislative proposal. And yet, nothing there is in the
books or in the Constitution itself. which would require such amendments to
be adopted by a constitutional convention. And then, too, the spirit of the
supreme enactment, we are sure, forbids that proposals therefor be initiated
by Congress and thereafter presented to the people for their ratification.
In the context just adverted to, we take the view that the words "submitted to
the people for their ratification", if construed in the light of the nature of the
Constitution a fundamental charter that is legislation direct from the
people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid
before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly in
insidious influences. We believe, the word "submitted" can only mean that
the government, within its maximum capabilities, should strain every effort to
inform very citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are
not to be understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the meaning
of the word as intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within
its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For, as we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent, consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so be it.
For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said "A good Constitution should beyond
the reach of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the
thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can
be allowed efficiency. . . . Changes in government are to be
feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law
Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the
people are not sufficiently informed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner
can it be said that in accordance with the constitutional mandate, "the
amendments are submitted to the people for their ratification?" Our answer is
"No".
We examine Republic Act 4913, approved on June 17, 1967 the statute
that submits to the people the constitutional amendments proposed by
Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner
of propagation of the nature of the amendments throughout the country.
There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election.
(2) A printed copy thereof shall be posted in a conspicuous place
in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election.
(3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept
in each polling place.
(5) The Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable,
in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for dissemination of
information regarding the amendments effectively brings the matter to the
people. A dissection of the mechanics yields disturbing thoughts. First, the
Official Gazette is not widely read. It does not reach the barrios. And even if it
reaches the barrios, is it available to all? And if it is, would all under stand
English? Second, it should be conceded that many citizens, especially those
in the outlying barrios, do not go to municipal, city and/or provincial office
buildings, except on special occasions like paying taxes or responding to
court summonses. And if they do, will they notice the printed amendments
posted on the bulletin board? And if they do notice, such copy again is in
English (sample submitted to this Court by the Solicitor General) for, anyway,
the statute does not require that it be in any other language or dialect. Third,
it would not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts it,
voting time is not study time. And then, who can enter the polling place,
except those who are about to vote? Fourth, copies in the principal native
languages shall be kept in each polling place. But this is not, as Section 2
itself implies, in the nature of a command because such copies shall be kept
therein only "when practicable" and "as may be determined by the
Commission on Elections." Even if it be said that these are available before
election, a citizen may not intrude into the school building where the polling
places are usually located without disturbing the school classes being held
there. Fifth, it is true that the Comelec is directed to make available copies of
such amendments in English, Spanish or whenever practicable, in the
principal native languages, for free distribution. However, Comelec is not
required to actively distribute them to the people. This is significant as to
people in the provinces, especially those in the far-flung barrios who are
completely unmindful of the discussions that go on now and then in the cities
and centers of population on the merits and demerits of the amendments.
Rather, Comelec, in this case, is but a passive agency which may hold
copies available, but which copies may not be distributed at all. Finally, it is of
common knowledge that Comelec has more than its hands full in these preelection days. They cannot possibly make extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official
sample ballot submitted to this Court would show that only the amendments
are printed at the back. And this, in pursuance to Republic Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the
proposed amendments thru dissemination by publication in extenso. People
do not have at hand the necessary data on which to base their stand on the
merits and demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed
constitutional amendments within the meaning and intendment of Section 1,
Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present election
campaign the focus is on the election of candidates. The constitutional
amendments are crowded out. Candidates on the homestretch, and their
leaders as well as the voters, gear their undivided efforts to the election of
officials; the constitutional amendments cut no ice with them. The truth is that
even in the ballot itself, the space accorded to the casting of "yes" or "no"
vote would give one the impression that the constitutional amendments are
but a bootstrap to the electoral ballot. Worse still, the fortunes of many
elective officials, on the national and local levels, are inextricably intertwined
with the results of the votes on the plebiscite. In a clash between votes for a
candidate and conscience on the merits and demerits of the constitutional
amendments, we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them to
equally ratify them properly is the meat of the constitutional requirement, is
reflected in the sequence of uniform past practices. The Constitution had
been amended thrice in 1939, 1940 and 1947. In each case, the
amendments were embodied in resolutions adopted by the Legislature,
which thereafter fixed the dates at which the proposed amendments were to
be ratified or rejected. These plebiscites have been referred to either as an
"election" or "general election". At no time, however, was the vote for the
amendments of the Constitution held simultaneously with the election
officials, national or local. Even with regard to the 1947 parity amendment;
the record shows that the sole issue was the 1947 parity amendment; and
the special elections simultaneously held in only three provinces, Iloilo,
Pangasinan and Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to ask
that reasonable guarantee be made that in the matter of the alterations of the
law of the land, their true voice be heard? The answer perhaps is best
expressed in the following thoughts: "It must be remembered that the
Constitution is the people's enactment. No proposed change can become
effective unless they will it so through the compelling force of need of it and
desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken
down as in violation of the Constitution.
Zaldivar
and
Castro,
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
JJ., concur.
EN BANC
After the adoption of said Res. No. 2 in 1967 but before the November
elections of that year, Congress, acting as a legislative body, enacted
Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and
practically restating in toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed
Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16,
1967 by providing that the convention "shall be composed of 320 delegates
apportioned among the existing representative districts according to the
number of their respective inhabitants: Provided, that a representative district
shall be entitled to at least two delegates, who shall have the same
qualifications as those required of members of the House of
Representatives," 1 "and that any other details relating to the specific
apportionment of delegates, election of delegates to, and the holding of, the
Constitutional Convention shall be embodied in an implementing legislation:
Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2
On August 24, 1970, Congress, acting as a legislative body, enacted
Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and
expressly
repealing
R.A.
No.
4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as
the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a).
Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of
Sec. 8(a) of said R.A. No. 6132 practically on the same grounds advanced
by petitioner Gonzales.
I
MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and
Raul M. Gonzales, both members of the Bar, taxpayers and interested in
running as candidates for delegates to the Constitutional Convention. Both
impugn the constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates. After the Solicitor
General had filed answers in behalf the respondents, hearings were held at
which the petitioners and the amici curiae, namely Senator Lorenzo Taada,
Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel
Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent
Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2
which among others called for a Constitutional Convention to propose
constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of
Congressmen, to be elected on the second Tuesday of November, 1970 in
accordance with the Revised Election Code.
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers
and employees, whether elective or appointive, including members of the
Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date of
the filing of their certificates of candidacy, was recently sustained by this
Court, on the grounds, inter alia, that the same is merely an application of
and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution
and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec.
8(a) of R.A. No. 6132 was upheld. 4
II
Without first considering the validity of its specific provisions, we sustain the
constitutionality of the enactment of R.A. No. 6132 by Congress acting as a
legislative body in the exercise of its broad law-making authority, and not as
a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art.
XV of the Constitution, has full and plenary authority to propose
Constitutional amendments or to call a convention for the purpose, by a
three-fourths vote of each House in joint session assembled but voting
separately. Resolutions Nos. 2 and 4 calling for a constitutional
convention were passed by the required three-fourths vote.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation
of liberty without due process of law and denies the equal protection of the
laws. Said Sec. 5 disqualifies any elected delegate from running "for any
public office in any election" or from assuming "any appointive office or
position in any branch of the government government until after the final
adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public
office, is axiomatic under our constitutional system. The State through its
Constitution or legislative body, can create an office and define the
qualifications and disqualifications therefor as well as impose inhibitions on a
public officer. Consequently, only those with qualifications and who do not fall
under any constitutional or statutory inhibition can be validly elected or
appointed to a public office. The obvious reason for the questioned inhibition,
is to immunize the delegates from the perverting influence of self-interest,
party interest or vested interest and to insure that he dedicates all his time to
performing solely in the interest of the nation his high and well nigh sacred
function of formulating the supreme law of the land, which may endure for
generations and which cannot easily be changed like an ordinary statute.
With the disqualification embodied in Sec. 5, the delegate will not utilize his
position as a bargaining leverage for concessions in the form of an elective
or appointive office as long as the convention has not finally adjourned. The
appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his
actuations as delegate; otherwise the several provisions of the new
Constitution may only satisfy individual or special interests, subversive of the
welfare of the general citizenry. It should be stressed that the disqualification
is not permanent but only temporary only to continue until the final
adjournment of the convention which may not extend beyond one year. The
convention that framed the present Constitution finished its task in
approximately seven months from July 30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the time for
which he was elected, from being appointed to any civil office which may
have been created or the emolument whereof shall have been increased
while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)
So that the purpose for calling the Constitutional Convention will not be
deflated or frustrated, it is necessary that the delegatee thereto be
independent, beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in the election of
delegates who, because they have been chosen with the aid and
resources of organizations, cannot be expected to be sufficiently
representative of the people. Such delegates could very well be the
spokesmen of narrow political, religious or economic interest and not of
the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of the
laws is not unduly subverted in par. I of Sec. 8(a); because it does not create
any hostile discrimination against any party or group nor does it confer
undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social,
civic, religious, or professional associations. The ban is germane to the
objectives of the law, which are to avert the debasement of the electoral
process, and to attain real equality of chances among individual candidates
and thereby make real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in advantages
because of their machinery and other facilities, which, the individual
candidate who is without any organization support, does not have. The fact
that the other civic of religious organizations cannot have a campaign
machinery as efficient as that of a political party, does not vary the situation;
because it still has that much built-in advantage as against the individual
candidate without similar support. Moreover, these civic religious and
professional organization may band together to support common candidates,
who advocates the reforms that these organizations champion and believe
are imperative. This is admitted by petitioner Gonzales thru the letter of
Senator Ganzon dated August 17, 1970 attached to his petition as Annex
"D", wherein the Senator stated that his own "Timawa" group had agreed
with the Liberal Party in Iloilo to support petitioner Gonzales and two others
as their candidates for the convention, which organized support is nullified by
the questioned ban, Senator Ganzon stressed that "without the group
moving and working in joint collective effort" they cannot "exercise effective
control
and
supervision
over
our
leaders the Women's League, the area commanders, etc."; but with their
joining with the LP's they "could have presented a solid front with very bright
chances of capturing all seats."
The civic associations other than political parties cannot with reason insist
that they should be exempted from the ban; because then by such
exemption they would be free to utilize the facilities of the campaign
machineries which they are denying to the political parties. Whenever all
organization engages in a political activity, as in this campaign for election of
delegates to the Constitutional Convention, to that extent it partakes of the
nature of a political organization. This, despite the fact that the Constitution
and by laws of such civic, religious, or professional associations usually
prohibit the association from engaging in partisan political activity or
supporting any candidate for an elective office. Hence, they must likewise
respect the ban.
The freedom of association also implies the liberty not to associate or join
with others or join any existing organization. A person may run independently
on his own merits without need of catering to a political party or any other
association for support. And he, as much as the candidate whose candidacy
does not evoke sympathy from any political party or organized group, must
be afforded equal chances. As emphasized by Senators Tolentino and
Salonga, this ban is to assure equal chances to a candidate with talent and
imbued with patriotism as well as nobility of purpose, so that the country can
utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of Senator
Taada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132,
demonstrating once again his deep concern for the preservation of our civil
liberties enshrined in the Bill of Rights, We are not persuaded to entertain the
belief that the challenged ban transcends the limits of constitutional invasion
of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No.
6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be
declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in accepting
the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall
represent or allow himself to be represented as being a candidate of any
political party or any other organization, and no political party, political group,
political committee, civic, religious, professional, or other organization or
organized group of whatever nature shall intervene in the nomination of any
such candidate or in the filing of his certificate of candidacy or give aid or
support directly or indirectly, material or otherwise, favorable to or against his
campaign for election: ..." 1 It is with regret then that I dissent from that
portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the aforesaid
ban on political parties and civic, professional and other organizations is
concerned with the explicit provision that the freedom to form associations or
societies for purposes not contrary to law shall not be abridged. 2 The right of
an individual to join others of a like persuasion to pursue common objectives
and to engage in activities is embraced within if not actually encouraged by
the regime of liberty ordained by the Constitution. This particular freedom
has an indigenous cast, its origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards freedom
of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and
continue to contribute to our Free Society." 3 Such is indeed the case, for five
years earlier the American Supreme Court had already declared: "It is
beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in]
freedom of speech." 4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or philosophies
by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is
not extremely included in the First Amendment its existence is necessary in
making the express guarantees fully meaningful." 5 Thus is further vitalized
freedom of expression which, for Justice Laurel, is at once the instrument"
and the guarantee and the bright consummate flower of all liberty" 6 and, for
Justice Cardozo, "the matrix, the indispensable condition of nearly every
other form of freedom." 7
2. It is in the light of the above fundamental postulates that I find merit in the
plea of petitioners to annul the challenged provision. There is much to be
said for the point emphatically stressed by Senator Lorenzo M. Taada, as
amicus curiae, to the effect that there is nothing unlawful in a candidate for
delegate to the Convention representing or allowing himself to be
represented as such of any political party or any other organization as well
as of such political party, political group, political committee, civic, religious,
professional or other organization or organized group intervening in his
nomination, in the filing of his certificate of candidacy, or giving aid or
support, directly or indirectly, material or otherwise, favorable to or against
his campaign for election as such delegate. I find the conclusion inescapabe
therefore, that what the constitutional provisions in question allow, more
specifically the right to form associations, is prohibited. The infirmity of the
ban is thus apparent on its face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of civic,
political, religious, professional, trade organizations or organized groups of
whatever nature to disseminate information about, or arouse public interest
in, the forthcoming Constitutional Convention, or to advocate constitutional
reforms, programs, policies or proposals for amendment of the present
Constitution, and no prohibition contained herein shall limit or curtail the right
of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention." 8 It is regrettable
that such an explicit recognition of what cannot be forbidden consistently
with the constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus commanded,
by the fundamental law, as they are precluded by the very same Act from
giving aid or support precisely to the very individuals who can carry out
whatever constitutional reforms, programs, policies or proposals for
amendment they might advocate. As thus viewed, the conviction I entertain
as to its lack of validity is further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such cherished
freedoms. Reference has been made to Gonzales v. Commission on
Elections. 9 As repression is permissible only when the danger of substantive
evil is present is explained by Justice Branders thus: ... the evil apprehended
is to imminent that it may befall before there is opportunity for full discussion.
If there be time to expose through discussion the falsehood and fallacies, to
and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that
the holding of this Court in Gonzales v. Comelec 12 does not compel the
conclusion reached by the majority sustaining the validity of this challenged
provision. What survived the test of constitutional validity in that case, with
the Court unanimous in its opinion, is the prohibition for any political party,
political committee or political group to nominate candidates for any elective
public office voted for at large earlier than 150 days immediately preceding
election and for any other public office earlier than 90 days immediately
preceding such election. 13 A corollary to the above limitation, the provision
making it unlawful for any person, whether or not a voter or candidate, or for
any group or association of persons, whether or not a political party or
political committee, to engage in an election campaign or partisan political
activity except during the above periods successfully hurdled, the
constitutional test, although the restrictions as to the making of speeches,
announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office or the publishing or
distributing of campaign literature or materials or the solicitation or
undertaking any campaign or propaganda for or against any candidate or
party, directly or indirectly, survived by the narrow margin of one vote, four
members of this Court unable to discern any constitutional infirmity as
against the free speech guarantee, thus resulting in failing to muster the
necessary two-thirds majority for a declaration of invalidity. Insofar as
election campaign or partisan political activity would limit or restrict the
formation, of organizations, associations, clubs, committees or other groups
of persons for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a
similar and in view, only five members of this Court, a minority thereof voted,
for their unconstitutionality. What emerges clearly, then, is that definite acts
short of preventing the political parties from the choice of their candidates
and thereafter working for them in effect were considered by this Court as
not violative of the constitutional freedoms of speech, of press, of assembly
and of association.
The challenged provision in these two petitions, however, goes much farther.
Political parties or any other organization or organized group are precluded
from selecting and supporting candidates for delegates to the Constitutional
Convention. To my mind, this is to enter a forbidden domain, Congress
trespassing on a field hitherto rightfully assumed to be within the sphere of
liberty. Thus, I am unable to conclude that our previous decision in Gonzales
v. Commission on Elections which already was indicative of the cautious and
hesitant judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of
expression, and of association lends support to the decision reached by the
majority insofar as this challenged provision is concerned.
EN BANC
G.R. No. L-56350 April 2, 1981
SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOSIMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M.
TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON
ELECTIONS, respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of
three Batasang Pambansa Resolutions 1proposing constitutional
amendments, goes further than merely assailing their alleged constitutional
infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members
of the Philippine Bar and former delegates to the 1971 Constitutional
Convention that framed the present Constitution, are suing as taxpayers. The
rather unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting
charm of novelty but nothing else. It is in fact self defeating, for if such
were indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility.
Nor are the arguments of petitioners cast in the traditional form of
constitutional litigation any more persuasive. For reasons to be set forth, we
dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and March 12,
1981. 4 On March 10 and 13 respectively, respondents were required to
answer each within ten days from notice. 5 There was a comment on the part
of the respondents. Thereafter, both cases were set for hearing and were
duly argued on March 26 by petitioners and Solicitor General Estelito P.
Mendoza for respondents. With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for
decision.
It is the ruling of the Court, as set forth at the outset, that the petitions must
be dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973
Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to
four. 8 It then concluded: "This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force and
effect." 9 Such a statement served a useful purpose. It could even be said
that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into
force and effect. With such a pronouncement by the Supreme Court and with
the recognition of the cardinal postulate that what the Supreme Court says is
not only entitled to respect but must also be obeyed, a factor for instability
was removed. Thereafter, as a matter of law, all doubts were resolved. The
1973 Constitution is the fundamental law. It is as simple as that. What cannot
be too strongly stressed is that the function of judicial review has both a
positive and a negative aspect. As was so convincingly demonstrated by
Professors Black 10 and Murphy, 11 the Supreme Court can check as well as
legitimate. In declaring what the law is, it may not only nullify the acts of
coordinate branches but may also sustain their validity. In the latter case,
there is an affirmation that what was done cannot be stigmatized as
constitutionally deficient. The mere dismissal of a suit of this character
suffices. That is the meaning of the concluding statement in Javellana. Since
then, this Court has invariably applied the present Constitution. The latest
case in point is People v. Sola, 12 promulgated barely two weeks ago. During
the first year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13
2. We come to the crucial issue, the power of the Interim Batasang
Pambansa to propose amendments and how it may be exercised. More
specifically as to the latter, the extent of the changes that may be introduced,
the number of votes necessary for the validity of a proposal, and the
standard required for a proper submission. As was stated earlier, petitioners
were unable to demonstrate that the challenged resolutions are tainted by
unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is
indubitable. The applicable provision in the 1976 Amendments is quite
explicit. Insofar as pertinent it reads thus: "The Interim Batasang
Pambansa shall have the same powers and its Members shall have the
same functions, responsibilities, rights, privileges, and disqualifications
as the interim National Assembly and the regular National Assembly
and the Members thereof." 14One of such powers is precisely that of
proposing amendments. The 1973 Constitution in its Transitory
Provisions vested theInterim National Assembly with the power to
propose amendments upon special call by the Prime Minister by a vote
of the majority of its members to be ratified in accordance with the
Article on Amendments. 15 When, therefore, the InterimBatasang
Pambansa, upon the call of the President and Prime Minister Ferdinand
E. Marcos, met as a constituent body it acted by virtue Of such
impotence Its authority to do so is clearly beyond doubt. It could and
did propose the amendments embodied in the resolutions now being
assailed. It may be observed parenthetically that as far as petitioner
Occena is Concerned, the question of the authority of
the Interim Batasang Pambansa to propose amendments is not new.
In Occena v. Commission on Elections, 16 filed by the same petitioner,
decided on January 28, 1980, such a question was involved although
not directly passed upon. To quote from the opinion of the Court
penned by Justice Antonio in that case: "Considering that the proposed
amendment of Section 7 of Article X of the Constitution extending the
retirement of members of the Supreme Court and judges of inferior
courts from sixty-five (65) to seventy (70) years is but a restoration of
the age of retirement provided in the 1935 Constitution and has been
intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, it cannot, therefore, be
said that our people are unaware of the advantages and disadvantages
of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the
amendments proposed are so extensive in character that they go far
beyond the limits of the authority conferred on the Interim Batasang
Separate Opinions
TEEHANKEE, J., dissenting:
(3) That leaves only the questions of the vote necessary to propose
amendments as well as the standard for proper submission. Again,
petitioners have not made out a case that calls for a judgment in their
favor. The language of the Constitution supplies the answer to the
above questions. The Interim Batasang Pambansa, sitting as a
constituent body, can propose amendments. In that capacity, only a
majority vote is needed. It would be an indefensible proposition to
assert that the three-fourth votes required when it sits as a legislative
body applies as well when it has been convened as the agency through
which amendments could be proposed. That is not a requirement as far
as a constitutional convention is concerned. It is not a requirement
either when, as in this case, the Interim Batasang Pambansa exercises
its constituent power to propose amendments. Moreover, even on the
assumption that the requirement of three- fourth votes applies, such
extraordinary majority was obtained. It is not disputed that Resolution
No. 1 proposing an amendment allowing a natural-born citizen of the
Philippines naturalized in a foreign country to own a limited area of land
for residential purposes was approved by the vote of 122 to 5;
Resolution No. 2 dealing with the Presidency, the Prime Minister and
the Cabinet, and the National Assembly by a vote of 147 to 5 with 1
abstention; and Resolution No. 3 on the amendment to the Article on
the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a
proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having
been called to the attention of the people so that it could not plausibly
be maintained that they were properly informed as to the proposed
changes. As to the period, the Constitution indicates the way the matter
should be resolved. There is no ambiguity to the applicable provision:
"Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held
not later than three months after the approval of such amendment or
revision." 21 The
three
resolutions
were
approved
by
the InterimBatasang Pambansa sitting as a constituent assembly on
February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date
of the plebiscite is set for April 7, 1981. It is thus within the 90-day
period provided by the Constitution. Thus any argument to the contrary
I vote to give due course to the petitions at bar and to grant the application
for a temporary restraining order enjoining the plebiscite scheduled for April
7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the
invalidity of the October 1976 amendments proposals to the 1973
Constitution for not having been proposed nor adopted in accordance with
the mandatory provisions thereof, as restated by me in Hidalgo vs.
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the
December 17, 1977 referendum exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the
Interim Batasang Pambansa as provided for in Amendment No. 3 of the
1976 Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose
and approve amendments to the Constitution as well as to set up the
machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so
long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional
amendments were now deemed necessary to be discussed and adopted for
submittal to the people, strict adherence with the mandatory requirements of
the amending process as provided in the Constitution must be complied with.
This means, under the prevailing doctrine ofTolentino vs. Comelec 4 that the
proposed amendments to be valid must come from the constitutional agency
vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be
convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling
doctrine of Tolentino, the October 1976 constitutional amendments which
created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional
from the people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid
before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word 'submitted' can only mean that the
government, within its maximum capabilities, should strain every short to
inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within
its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For, as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission,
intelligent consent or rejection. If with all these safeguards the people still
approve the amendments no matter how prejudicial it is to them, then so be
it. For the people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "... The
great men who builded the structure of our state in this respect had the
mental vision of a good Constitution voiced by Judge Cooley, who has said
'A good Constitution should be beyond the reach of temporary excitement
and popular caprice or passion. It is needed for stability and steadiness; it
must yield to the thought of the people; not to the whim of the people, or the
thought evolved in excitement, or hot blood, but the sober second thought,
which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As
Montaign says: 'All great mutation shake and disorder a state. Good does
not necessarily succeed evil; another evil may succeed and a worse."'
EN BANC
intervenors from the ranks of the delegates to the Convention who, more or
less, have legal interest in the success of the respondents, and so, only
Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor
de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right,
have been allowed to intervene jointly. The Court feels that with such an
array of brilliant and dedicated counsel, all interests involved should be duly
and amply represented and protected. At any rate, notwithstanding that their
corresponding motions for leave to intervene or to appear as amicus curiae 1
have been denied, the pleadings filed by the other delegates and some
private parties, the latter in representation of their minor children allegedly to
be affected by the result of this case with the records and the Court
acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of
1971 came into being by virtue of two resolutions of the Congress of the
Philippines approved in its capacity as a constituent assembly convened for
the purpose of calling a convention to propose amendments to the
Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The delegates to
the said Convention were all elected under and by virtue of said resolutions
and the implementing legislation thereof, Republic Act 6132. The pertinent
portions of Resolution No 2 read as follows:
We need not go far in search for the answer to the query We have posed.
The very decision of Chief Justice Concepcion in Gonzales, so much
invoked by intervenors, reiterates and reinforces the irrefutable logic and
wealth of principle in the opinion written for a unanimous Court by Justice
Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred,
if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that instrument
which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function
as a harmonious whole, under a system of check and balances and
subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels,
for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment and the principles of good
government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in
any living Constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a
period of more than one and half centuries. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of
Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to
them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and
to strike conclusions unrelated to actualities. Narrowed as its functions
is in this manner the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty ... the people who are authors of
this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority
of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in consultation rooms and
court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to the
said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted after
December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole
power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the
Electoral Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of the
National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National Assembly
on the one hand and the Electoral Commission on the other. From the
very nature of the republican government established in our country in
the light of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to
determine all contests relating to the election, returns and qualifications
of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within
the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not
subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting
claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by
the judiciary in justiciable and appropriate cases. Discarding the
English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the
American example, provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to interpret the
fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to
assume what is logically their function. For instance, the Constitution of
Poland of 1921 expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, Chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this power.
This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain
(arts. 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present controversy shows
the necessity of a final constitutional arbiter to determine the conflict of
authority between two agencies created by the Constitution. Were we
to decline to take cognizance of the controversy, who will determine the
conflict? And if the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional system which
may in the long run prove destructive of the entire framework? To ask
these questions is to answer them. Natura vacuum abhorret, so must
we avoid exhaustion in our constitutional system. Upon principle,
reason, and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over the
Electoral Commission and the subject matter of the present controversy
for the purpose of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole judge of
all contests relating to the election, returns and qualifications of the
members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did
in Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the government
but to all such conflicts between and among these departments, or, between
any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors, why
the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of
the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of
the Court over the present case. It goes without saying that We do this not
because the Court is superior to the Convention or that the Convention is
subject to the control of the Court, but simply because both the Convention
and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the
power as it is the solemn duty of the Court, under the existing Constitution to
resolve the issues in which petitioner, respondents and intervenors have
joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is
it within the powers of the Constitutional Convention of 1971 to order, on its
own fiat, the holding of a plebiscite for the ratification of the proposed
amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the
Convention?
At the threshold, the environmental circumstances of this case demand the
most accurate and unequivocal statement of the real issue which the Court is
called upon to resolve. Petitioner has very clearly stated that he is not
against the constitutional extension of the right of suffrage to the eighteenyear-olds, as a matter of fact, he has advocated or sponsored in Congress
such a proposal, and that, in truth, the herein petition is not intended by him
to prevent that the proposed amendment here involved be submitted to the
people for ratification, his only purpose in filing the petition being to comply
with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in
connection with the most laudable undertaking. Indeed, as the Court sees it,
the specific question raised in this case is limited solely and only to the point
of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment
proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subject question
implementing actions and resolution of the Convention and its officers, at this
juncture of its proceedings, when as it is a matter of common knowledge and
judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting
other parts of the existing Constitution; and, indeed, Organic Resolution No.
1 itself expressly provides, that the amendment therein proposed "shall be
without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended section
or on other portions of the entire Constitution." In other words, nothing that
the Court may say or do, in this case should be understood as reflecting, in
any degree or means the individual or collective stand of the members of the
Court on the fundamental issue of whether or not the eighteen-year-olds
should be allowed to vote, simply because that issue is not before Us now.
There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said
proposed amendment may be presented to the people for their approval or
rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm
of the youth have not blinded them to the absolute necessity, under the
fundamental principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely, their idealism,
sincerity and purity of purpose cannot permit any other line of conduct or
approach in respect of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of the pressure brought
to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in the structure and
bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of achieving
such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at
times have justifiably or unjustifiably marred the demonstrations in the
streets, plazas and campuses, the youth of the Philippines, in general, like
the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to
change the present order of things in this Republic of ours. It would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were
to allow itself in deciding this case to be carried astray by considerations
other than the imperatives of the rule of law and of the applicable provisions
of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and
vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge
that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful
change is the only alternative to a violent revolution, this Court would be the
last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling
provision, Article XV, from which the Convention itself draws life expressly
speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly
prevailing view is that only the collective judgment of its members as to what
is warranted by the present condition of things, as they see it, can limit the
extent of the constitutional innovations the Convention may propose, hence
the complete substitution of the existing constitution is not beyond the ambit
of the Convention's authority. Desirable as it may be to resolve, this grave
divergence of views, the Court does not consider this case to be properly the
one in which it should discharge its constitutional duty in such premises. The
issues raised by petitioner, even those among them in which respondents
and intervenors have joined in an apparent wish to have them squarely
passed upon by the Court do not necessarily impose upon Us the imperative
obligation to express Our views thereon. The Court considers it to be of the
utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in
the manner and form it may conceive best, and so the Court may step in to
clear up doubts as to the boundaries set down by the Constitution only when
and to the specific extent only that it would be necessary to do so to avoid a
constitutional crisis or a clearly demonstrable violation of the existing
Charter. Withal, it is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the Supreme Court only when
there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional
Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear
that the Convention came into being by a call of a joint session of Congress
pursuant to Section I of Article XV of the Constitution, already quoted earlier
in this opinion. We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must
be so, because it is plain to Us that the framers of the Constitution took care
that the process of amending the same should not be undertaken with the
Who can say whether or not later on the Convention may decide to provide
for varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the
Convention is precisely on the verge of introducing substantial changes, if
not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the reduction of the
voting age upon the different institutions which the Convention may establish
and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole.
In the context of the present state of things, where the Convention has hardly
started considering the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people any single proposal
or a few of them cannot comply with this requirement. We are of the opinion
that the present Constitution does not contemplate in Section 1 of Article XV
a plebiscite or "election" wherein the people are in the dark as to frame of
reference they can base their judgment on. We reject the rationalization that
the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment
on the merits of the proposal to allow these eighteen years old to vote. But
like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being complied
with. In the best light God has given Us, we are of the conviction that in
providing for the questioned plebiscite before it has finished, and separately
from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Section 1, Article
XV that there should only be one "election" or plebiscite for the ratification of
all the amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be
submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. By
this, we are not to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers
that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other extraneous issues,
such as the choice of local and national officials. The framers of the
Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only
meant that any amendments thereto should be debated, considered
and voted upon an election wherein the people could devote undivided
attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do you or do
you not want the 18-year old to be allowed to vote?," would seem to be
uncomplicated and innocuous. But it is one of life's verities that things which
appear to be simple may turn out not to be so simple after all.
by the acts of the legislature, as to the extent of its constituent power. This
view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on the
power the Constitutional, Convention must find its source. I turn to its Article
XV. It reads: "The Congress in joint session assembled, by a vote of three
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for
their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are
two steps, proposal and thereafter ratification. Thus as to the former, two
constituent bodies are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention that may be called
into being. Once assembled, a constitutional convention, like the Congress
of the Philippines, possesses in all its plenitude the constituent power.
Inasmuch as Congress may determine what amendments it would have the
people ratify and thereafter take all the steps necessary so that the approval
or disapproval of the electorate may be obtained, the convention likewise, to
my mind, should be deemed possessed of all the necessary authority to
assure that whatever amendments it seeks to introduce would be submitted
to the people at an election called for that purpose. It would appear to me
that to view the convention as being denied a prerogative which is not
withheld from Congress as a constituent body would be to place it in an
inferior category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals under the
fundamental law. A power granted to one should not be denied the other. No
justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the legislative
and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such
likelihood is remote, but if such a risk even if minimal could be avoided, it
should be, unless the compelling force of an applicable constitutional
provision requires otherwise. Considering that a constitutional convention is
not precluded from imposing additional restrictions on the powers of either
the executive or legislative branches, or, for that matter, the judiciary, it would
appear to be the better policy to interpret Article XV in such a way that would
not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to
my mind would collide with a reasonable interpretation of Article XV. It
certainly is one way by which freed from pernicious abstractions, it would be
easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably
brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the
challenged resolution was well within the power of the convention. That
would be to brush aside the web of unreality spun from a too-restrictive
mode of appraising the legitimate scope of its competence. That would be,
for me, to give added vigor and life to the conferment of authority vested in it,
attended by such grave and awesome responsibility.
EN BANC
PROPOSED AMENDMENTS:
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise
the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and the
powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.
Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendumplebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2
MARTIN, J,:
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its
"whereas" clauses that the people's continued opposition to the convening of
the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body,
which will be submitted directly to the people in the referendum-plebiscite of
October 16.
The questions ask, to wit:
(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second
question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.
9. These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by I majority of the votes cast in
the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,
father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding and
conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No.
1031, insofar as it directs the Commission on Elections to supervise, control,
hold, and conduct the Referendum-Plebiscite scheduled on October 16,
1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition period,
only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a
delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition
period is expressly conferred on the interim National Assembly under Section
16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President cannot act as a constituent assembly
to propose amendments to the Constitution; a referendum-plebiscite is
untenable under the Constitutions of 1935 and 1973; the submission of the
proposed amendments in such a short period of time for deliberation renders
the plebiscite a nullity; to lift Martial Law, the President need not consult the
people via referendum; and allowing 15-.year olds to vote would amount to
an amendment of the Constitution, which confines the right of suffrage to
those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo
C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the
constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is
now an ancient rule that the valid source of a stature Presidential Decrees
are of such nature-may be contested by one who will sustain a direct injuries
as a in result of its enforcement. At the instance of taxpayers, laws providing
for the disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds.
4 The breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5 Presidential
Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political impression.
In the Plebiscite Cases, 11 the contention of the Solicitor General that the
issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino
people (on January 15, 1973) for ratification or rejection the Constitution of
the Republic of the Philippines proposed by the 1971 Constitutional
Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in
nature. Subsequently in the Ratification Cases 12involving the issue of
whether or not the validity of Presidential Proclamation No. 1102. announcing
the Ratification by the Filipino people of the constitution proposed by the
1971 Constitutional Convention," partakes of the nature of a political
question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion,
expressing the majority view, said, Thus, in the aforementioned plebiscite
cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and We unanimously declared that
the issue was a justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases, questioning Our
authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to
the former case, which view We, accordingly, abandoned and refused to
apply. For the same reason, We did not apply and expressly modified, in
Gonzales vs. Commission on Elections, the political-question theory adopted
in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively
refused by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same as those
given in support on the political question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court
and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II
SECTION 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall take
effect when ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normally,
the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of
the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority
vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the
National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion as to when
he shall initially convene the interim National Assembly. Speaking for the
majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time
when he shall initially convene the interim National Assembly, consistent with
the prevailing conditions of peace and order in the country." Concurring,
Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on
the Transitory Provisions, they were aware of the fact that under the same,
the incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be
convened 'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National Assembly
soon found support from the people themselves. In the plebiscite of January
10-15, 1973, at which the ratification of the 1973 Constitution was submitted,
the people voted against the convening of the interim National Assembly. In
the referendum of July 24, 1973, the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the
proposed question of whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed automatically
members of the I interim National Assembly, were against its inclusion since
in that referendum of January, 1973, the people had already resolved against
it.
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual
function of lawmaking. lt is not legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar power bestowed upon it by the
fundamental charter itself. In the Philippines, that power is provided for in
Article XVI of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly). While
ordinarily it is the business of the legislating body to legislate for the nation
by virtue of constitutional conferment amending of the Constitution is not
legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative
character'. The distinction, however, is one of policy, not of law. 17 Such being
the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove
applies only to the ordinary cases of legislation. The President has nothing to
do with proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the Philippines
is a crisis government today are more or less concentrated in the
latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point." (Gonzales vs. Commission on Elections, et al, L28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have
been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l,
1973, 50 SCRA 30), six members of the Court concurred in the view that the
question of whether the 1973 Constitution was ratified in accordance with the
provisions of Article XV (Amendments) of the 1935 Constitution is inherently
and essentially justiciable.
The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the National Assembly is convened by the
incumbent President and the interim President and the interim Prime Minister
are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as
an obvious fact of the nation's political life was recognized by the Court in
Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62
SCRA 275), when it rejected the claim that, under the 1973 Constitution, the
President was in duty bound to convene the interim National Assembly soon
after the Constitution took effect.
The second stage embraces the period from the date the interim National
Assembly is convened to the date the Government described in Articles VII
to IX of the Constitution is inaugurated, following the election of the members
of the regular National Assembly (Article XVII, Section 1) and the election of
the regular President and Prime Minister,. This is as it should be because it is
recognized that the President has been accorded the discretion to determine
when he shall initially convene the interim National Assembly, and his
decision to defer the convocation thereof has found overwhelming support by
the sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the two
sets of provisions embodied in the Constitution on the amendatory process
applied during the said first stage. Thus, Section 15, Article XVII (Transitory
Provisions) provides"Sec. 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim
Prime Minister" limits the application thereof to the second stage of the
transition period, i.e.,., after the interim? National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to witSECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of threefourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its
Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of ceiling such a convention to the
electorate in an election.
Besides. it is a fact of which judicial notice may well be taken that in the not
so distant past when the 1973 Constitution was submitted to the people for
ratification, an all-out campaign, in which all the delegates of the
Constitutional Convention reportedly participated, was launched to acquaint
the people with the ramifications and working of the new system of
government sought to be inaugurated thereunder. It may thus well be
assumed that the people in general have since acquired, in the least, a
working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the
interim National assembly with another legislative arm for the Government
during the transition period until the regular National Assembly shall have
been constituted do not appear to be of such complexity as to require
considerable time to be brought home to the full understanding of the people.
And, in fact, the massive and wide-ranging informational and educational
campaign to this end has been and still is in full swing, with all the media the
barangay, the civic and sectoral groups, and even the religious all over the
land in acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote
could very well mean an understanding of the proposals which they reject;
while an affirmative vote could equally be indicative Of such understanding
and/or an abiding credence in the fidelity with which the President has kept
the trust they have confided to him as President and administrator of martial
rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass
judgment upon is posed. Accordingly, I vote for the outright dismissal of the
three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in Javellana
v. Executive Secretary and followed successively in three crucial decisions,
Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission, 5 manifest to the same degree the delicate and
awesome character of the function of judicial review. While previous rulings
supply guidance and enlightenment, care is to be taken to avoid doctrinaire
rigidity unmindful of altered circumstances and the urgencies of the times. It
is inappropriate to resolve the complex problems of a critical period without
full awareness of the consequences that flow from whatever decision is
reached. Jural norms must be read in the context of social facts, There is
need therefore of adjusting inherited principles to new needs. For law, much
more so constitutional law, is simultaneously a reflection of and a force in the
society that it controls. No quality then can be more desirable in
constitutional adjudication than that intellectual and imaginative insight which
goes into the heart of the matter. The judiciary must survey things as they
are in the light of what they must become It must inquire into the specific
problem posed not only in terms of the teaching of the past but also of the
emerging political and legal theory, especially so under a leadership notable
for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind
through that this Court must be conscious of the risk inherent in its being
considered as a mere subservient instrument of government policy however
admittedly salutary or desirable. There is still the need to demonstrate that
the conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm
followed, the conclusion reached being that the three petitions be dismissed.
I am in agreement. It is with regret however that based on my reading of past
decisions, both Philippine and American, and more specifically my
concurring opinion in Aquino v. Ponce Enrile, I must dissent from the
proposition set forth in the able and scholarly opinion of Justice Martin that
there is concentration of power in the President during a crisis government.
Consequently, I cannot see my way clear to accepting the view that the
authority to propose amendments is not open to question. At the very least,
serious doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in a crisis government, following
Rossiter, "are more or less concentrated in the President." Adherence to my
concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no
choice.
It must be stated at the outset that with the sufficiency of doctrines supplied
by our past decisions to point the way to what I did consider the appropriate
response to the basic issue raised in the Aquino and the other habeas
corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements
on martial law, at the most persuasive in character and rather few in number
"due no doubt to the, absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only after the
landmark Ex parte Milligan case, that commentators like Cooley in 1868 and
Watson in 1910 paid attention, minimal by that, to the subject." It was next
set forth that in the works on American constitutional law published in this
century specially after the leading cases of cases Sterling v. Constant in and
Duncan v. Kahanamoku, "there was a fuller treatment of the question of
martial law While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick,
came out earlier with a similar appraisal. 10 Thus: "So called martial law,
except in occupied territory of an enemy is merely the calling in of the aid of
military forces by the executive, who is charged with the enforcement of the
law, with or without special authorization by the legislature. Such declaration
of martial law does not suspend the civil law, though it may interfere with the
exercise of one's ordinary rights. The right to call out the military forces to
maintain order and enforce the law is simply part of the Police power, It is
only justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessarily to meet the exigency, including the
arrest, or in extreme cases the. killing of those who create the disorder or
oppose the authorities. When the exigency is over the members of the
military forces are criminally and civilly habit for acts done beyond the scope
of reasonable necessity. When honestly and reasonably coping with a
situation of insurrection or riot a member of the military forces cannot be
made liable for his acts, and persons reasonably arrested under such
circumstances will not, during the insurrection or riot, be free by writ of
habeas corpus." 11 When the opinion cited Willoughby's concept of martial
law, stress was laid on his being "Partial to the claims of liberty."12 This is
evident in the explicit statement from his work quoted by me: "There is, then,
strictly speaking, no such thing in American law as a declaration of martial
law whereby military law is substituted for civil law. So-called declarations of
martial law are, indeed, often made but their legal effect goes no further than
to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while
the emergency lasts, they must, upon pain of arrest and punishment not
commit any acts which will in any way render more difficult the restoration of
order and the enforcement of law. Some of the authorities stating
substantially this doctrine are quoted in the footnote below Nor did I stop
there. The words of Willis were likewise cited: "Martial law proper, that is,
military law in case of insurrection, riots, and invasions, is not a substitute for
the civil law, but is rather an aid to the execution of civil law. Declarations of
martial law go no further than to warn citizens that the executive has called
upon the military power to assist him in the maintenance of law and order.
While martial law is in force, no new powers are given to the executive and
no civil rights of the individual, other than the writ of habeas corpus, are
suspended. The relations between the citizen and his stature unchanged." 14
The conclusion reached by me as to the state of American federal law on the
question of martial law was expressed thus: 4'1 It is readily evident that even
when Milligan supplied the only authoritative doctrine, Burdick and
Willoughby did not ignore the primacy of civil liberties. Willis wrote after
Sterling. It would indeed be surprising if his opinion were otherwise. After
Duncan, such an approach becomes even more strongly fortified. Schwartz,
a time. Since September 1972, when President Marcos established the crisis
government, peace and order have been restored in a country once avoided
as one of the most unsafe in the world. We have liberated millions of Filipino
farmers from the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24 Further, she said: "A dynamic economy
has replaced a stagnant order, and its rewards are distributed among the
many, not hoarded by a few. Our foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed isolation, now travels the broad
expressways of friendship and constructive interaction with the whole world,
these in a new spirit of confidence and self-reliance. And finally, forced to
work out our own salvation, the Filipino has re-discovered the well-springs of
his strength and resilience As Filipinos, we have found our true Identity. And
having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly
not a permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of the
modified parliamentary system under the present Constitution should not be
further delayed. The full restoration of civilian rule can thus be expected.
That is more in accord with the imperatives of a constitutional order. It should
not go unnoticed either that the President has referred to the present regime
as one of "constitutional authoritarianism." That has a less objectionable ring,
authority being more Identified with the Idea of law, as based on right, the
very antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a partisan of d strong Presidency, was
not averse to constitutional restraints even during periods of crisis. So I
would interpret this excerpt from the fourth edition of his classic treatise on
the Presidency: "A regime of martial law may be compendiously, if not
altogether accurately, defined as one in which the ordinary law, as
administered by the ordinary courts, is superseded for the time being by the
will of a military commander. It follows that, when martial law is instituted
under national authority, it rests ultimately on the will of the President of the
United States in his capacity as Commander-in-Chief. It should be added at
once, nevertheless, that the subject is one in which the record of actual
practice fails often to support the niceties of theory. Thus, the employment of
the military arm in the enforcement of the civil law does not invariably, or
even usually, involve martial law in the strict sense, for, as was noted in the
preceding section, soldiers are often placed simply at the disposal and
direction of the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the civil
authorities themselves are apt to vest in the military in any emergency
requiring its assistance, the line between such an employment of the military
and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into military
government and the other into the situation just described, in which the civil
authority remains theoretically in control although dependent on military aid.
Finally, there is the situation that obtained throughout the North during the
Civil War, when the privilege of the writ of habeas corpus was suspended as
to certain classes of suspects, although other characteristics of martial law
were generally absent." 26
It is by virtue of the above considerations that, with due respect to the
opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial law.
5 There is necessity then, for me at least, that the specific question raised in
all three petitions be squarely faced. It is to the credit of the opinion of the
Court that it did so. The basic issue posed concerns the boundaries of the
power of the President during this period of martial law, more precisely
whether it covers proposing amendments to the Constitution. There is the
further qualification if the stand of respondents be taken into account that the
interim National Assembly has not been convened and is not likely to be
called into session in deference to the wishes of the people as expressed in
three previous referenda. It is the ruling of the majority that the answer be in
the affirmative, such authority being well within the area of presidential
It can be said with truth, therefore, that there has invariably been a judicial
predisposition to activism rather than self-restraint. The thinking all these
years has been that it goes to the heart of constitutionalism. It may be said
that this Court has shunned the role of a mere interpreter; it did exercise at
times creative power. It has to that extent participated in the molding of
policy, It has always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of statecraft. The
assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it
cannot prevail against the pressure of political forces if they are bent in other
directions. it does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked, to decide
momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties
in an era of transformation and change. A society in flux calls for dynamism
in "he law, which must be responsive to the social forces at work. It cannot
remain static. It must be sensitive to life. This Court then must avoid the
rigidity of legal Ideas. It must resist the temptation of allowing in the
wasteland of meaningless abstractions. It must face stubborn reality. It has to
have a feel for the complexities of the times. This is not to discount the risk
that it may be swept too far and too fast in the surge of novel concepts. The
past too is entitled to a hearing; it cannot just be summarily ignored. History
still has its uses. It is not for this Court to renounce the virtue of systematic
jural consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what appears
to be a splintered society. It should strive to be a factor for unity under a rule
of law. There must be, on its part, awareness of the truth that a new juridical
age born before its appointed time may be the cause of unprecedented
travail that may not end at birth. It is by virtue of such considerations that I
did strive for a confluence of principle and practicality. I must confess that I
did approach the matter with some misgivings and certainly without any
illusion of omniscience. I am comforted by the thought that immortality does
not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject
of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not
currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I
am the first to recognize the worth of' the social and economic reforms so
needed by the troubled present that have been introduced and implemented.
There is no thought then of minimizing, much less of refusing to concede, the
considerable progress that has been made and the benefits that have been
achieved under this Administration. Again, to reiterate one of my cherished
convictions, I certainly approve of the adherence to the fundamental principle
of popular sovereignty which, to be meaningful however, requires both
freedom in its manifestation and accuracy in ascertaining what it wills. Then,
too, it is fitting and proper that a distinction was made between two aspects
of the coming poll, the referendum and the plebiscite. It is only the latter that
is impressed with authoritative force. So the Constitution requires. Lastly,
there should be, as I did mention in my concurrence in Aquino v. Commission
on Elections,56 full respect for free speech and press, free assembly and
free association. There should be no thought of branding the opposition as
the enemy and the expression of its views as anathema, Dissent, it is
fortunate to note, has been encouraged. It has not been Identified with
disloyalty. That ought to be the case, and not solely due to presidential
decrees. Constructive criticism is to be welcomed not so much because of
the right to be heard but because there may be something worth hearing.
That is to ensure a true ferment of Ideas, an interplay of knowledgeable
minds. There are though well- defined limits, One may not advocate disorder
in the name of protest, much less preach rebellion under the cloak of
dissent.. What I mean to stress is that except on a showing of clear and
present danger, there must be respect for the traditional liberties that make a
society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for
lack of merit and vote to grant the petitions for the following reasons and
considerations: 1. It is undisputed that neither the 1935 Constitution nor the
majority vote of all its members that may propose the amendments, the
Court must declare the amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular mode and
manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands of
their official agencies but their own hands as well; and neither the officers of
the State, nor the whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the
legislative body (the regular National Assembly) or the interim National
Assembly during the transition period) or in a constitutional convention called
for the purpose is in accordance with universal practice. "From the very
necessity of the case" Cooley points out "amendments to an existing
constitution, or entire revisions of it, must be prepared and matured by some
body of representatives chosen for the purpose. It is obviously impossible for
the whole people to meet, prepare, and discuss the proposed alterations,
and there seems to be no feasible mode by which an expression of their will
can be obtained, except by asking it upon the single point of assent or
disapproval." This body of representatives vested with the constituent power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for ratification
or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to
be achieved is to be desired" and in denying reconsideration in paraphrase
of the late Claro M. Recto declared that "let those who would put aside,
invoking grounds at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in mind that
someday somehow others with purportedly more laudable objectives may
take advantage of the precedent and continue the destruction of the
Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their own
folly."
This same apprehension was echoed by now retired Justice Calixto O.
Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be
opening the gates for a similar disregard to the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now
in force because the members of the citizens assemblies had approved said
new Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the Constitution
may be adopted, even in a manner contrary to the existing Constitution and
the law, and then said proposed amendments is submitted to the people in
any manner and what will matter is that a basis is claimed that there was
approval by the people. There will not be stability in our constitutional
system, and necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to
so overrule) to accept the proposed; amendments as valid notwithstanding
their being "not in conformity with the letter, spirit and intent of the provision
of the Charter for effecting amendments" on the reasoning that "If the
President has been legitimately discharging the legislative functions of the
interim National Assembly, there is no reason why he cannot validly
discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking
through now retired Chief Justice Roberto Concepcion, pointer out that
"Indeed, the power to Congress" 17 or to the National Assembly.18 Where it
not for the express grant in the Transitory Provisions of the constituent power
to the interim National Assembly, the interim National Assembly could not
claim the power under the general grant of legislative power during the
transition period.
The majority's ruling in the Referendum cases 19 that the Transitory Provision
in section 3(2) recognized the existence of the authority to legislate in favor
of the incumbent President during the period of martial law manifestly cannot
be stretched to encompass the constituent power as expressly vested in the
interim National Assembly in derogation of the allotment of powers defined in
the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of
the settled maxims of constitutional law, 20 the contituent power has been
lodged by the sovereign power of the people with the interim National
Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of
Angara vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no
uncertain language and restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels,
for then the distribution of powers sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any
living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The
sentiment of the people against the convening of the interim National
Assembly and to have no elections for "at least seven (7) years" Concededly
could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the
proclamation of ratification of the 1973 Constitution), much less remove the
constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum cases 22,
"(W)hile it has been advanced that the decision to defer the initial
convocation of the interim National Assembly was supported by the results of
the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such
sentiment cannot be given any legal force and effect in the light of the State's
admission at the hearing that such referendums are merely consultative and
cannot amend the Constitution or Provisions which call for the 'immediate
existence' and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures enumerated in section
5 thereof".
While the people reportedly expressed their mandate against the convening
of the interim National Assembly to dischange its legislative tasks during the
period of transition under martial law, they certainly had no opportunity and
did not express themselves against convening the interim National Assembly
to discharge the constituent power to propose amendments likewise vested
in it by the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was
first announced, the newspapers reported that among the seven questions
proposed by the sanggunian and barangay national executive committies for
the referendum was the convening of the interim National Assembly. 23
It was further reported that the proposals which were termed tentative "will
be discussed and studied by (the President), the members of the cabinet,
and the security council" and that the barangays felt, notwithstanding the
previous referenda on the convening of the interim National Assembly that "it
is time to again ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed necessary to
be discussed and adopted for submittal to the people, strict adherence with
the mandatory requirements of the amending process as provided in the
This is but to give meaning to the plan and clear mandate of section 15 of
the Transitory Provisions (which allows of no other interpretation) that during
the stage of transition the interim National Assembly alone exercises the
constituent power to propose amendments, upon special call therefor. This is
reinforced by the fact that the cited section does not grant to the regular
National Assembly of calling a constitutional convention, thus expressing the
will of the Convention (and presumably of the people upon ratification) that if
ever the need to propose amendments arose during the limited period of
transition, the interim National Assembly alone would discharge the task and
no constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National Assembly
to propose amendments, among them its own abolition, (P24 million annually
in salaries alone for its 400 members at P600,000.00 per annum per
member, assuming that its deliberations could last for one year), suffice it to
recall this Court's pronouncement in Tolentino (in reflecting a similar
argument on the costs of holding a plebiscite separately from the general
elections for elective officials) that "it is a matter of public knowledge that
bigger amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even more is
not too much a price to pay for fealty and loyalty to the Constitution ...
" 30 and that "while the financial costs of a separate plebiscite may be high, it
can never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and "no
consideration of financial costs shall deter Us from adherence to the
requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis a crisis greater than
war") 32 cited by the majority opinion as justifying the concentration of powers
in the President, and the recognition now of his exercising the constituent
power to propose amendments to the Fundamental Law "as agent for and in
behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and
should not create power. In our democracy the hope and survival of the
nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12 ,
as stressed by the writer in his separate opinion in the Referendum
Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935
Constitution and provides for the imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent danger thereof, when the
public safety requires it and hence the use of the legislative power or more
accurately 'military power' under martial rule is limited to such necessary
measures as will safeguard the Republic and suppress the rebellion (or
invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases to be the recognition or warrant for the
exercise of legislative power by the President during the period of martial law
is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to be considered in isolation from
the Constitution but as mere integral parts thereof which must be
harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to
conflict, the courts must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than
one which may make some words Idle and nugatory.
This rule is applicable with special force to written constitutions, in
which the people will be presumed to have expressed themselves in
careful and measured terms, corresponding with the immense
At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which are intended by the Constitutional
and relevant laws to be conclusively determined by the "political", i.e.
branches of government (namely, the Executive and the Legislative) are
outside the Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the
required constitutional majority), the Court has since consistently ruled that
when proposing and approving amendments to the Constitution, the
members of Congress. acting as a constituent assembly or the members of
the Constitutional Convention elected directly for the purpose by not have
the final say on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that outs is it government of lawsom not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court, the power
to declare a treaty unconstitutional, despite the eminently political character
of treaty-making power". 44
As amplified by former Chief Justice Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified,
conditional or subject to limitations. the issue on whether or not the
prescribed qualifications or conditions have been met, or the limitations by
expected, is justiciable or non-political, the crux of the problem being one of
legality or validity of the contested act, not its wisdom Otherwise, said
qualifications, conditions and limitations-particularly those prescribed or
imposed by the Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable
since as stressed even in Javellana the issue of validity of the President's
proclamation of ratification of the Constitution presented a justiciable and
non-political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the
purpose, in proposing amendments to the people for ratification followed the
constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or
wisdom of the proposed amendments, which if Submitted, are reserved for
the people's decision.
The substantive question presented in the case at bar of whether the
President may legally exercise the constituent power vested in the interim
National Assembly (which has not been granted to his office) and propose
constitutional amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a
political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of
the proposed amendments to the people: Prescinding from the writer's view
of the nullity of the questioned decree of lack of authority on the President's
part to excercise the constituent power, I hold that the doctrine of fair and
proper submission first enunciated by a simple majority of by Justices in
Gonzales and subsequently officially adopted by the required constitutional
two-thirds majority of the Court in is controlling in the case at bar.
3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications
reported in the daily newspapers, it is manifest that there is no proper
submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday, October 16, 1976
wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the
highest order, was reported by the newspapers last October 3 to have
observed that "there is no urgency in approving the proposed amendments
to the Constitution and suggested that the question regarding charter
changes be modified instead of asking the people to vote on hurriedly
prepared amendments". He further pointed out that "apart from lacking the
parliamentary style in the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended". 52
2. The now Chief Justice and Mr. Justice Makasiar with two other members
46 graphically pointed out in their joint separate opinion that the solitary
question "would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so
simple after all". 47
They further expressed "essential agreement" with Mr. Justice Conrado V.
Sanchez' separate opinion in Gonzales "on the minimum requirements that
must be met in order that there can be a proper submission to the people of
a proposed constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the people for their
ratification', if construed in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an
expression of their sovereign will - is that it can only be amended by the
people expressing themselves according to the procedure ordained by
the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them
with the proposed amendments, and try to reach a conclusion as the
dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word
submitted' can only mean that the government, within its maximum
capabilities, should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent. consent or
rejection. If with all these safeguards the people still approve the
amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate. 48
Justice Sanchez therein ended the passage with an apt citation that " ... "
The great men who builded the structure of our state in this respect had the
mental vision of a good Constitution voiced by Judge Cooley, who has said
'A good Constitution should be beyond the reach of temporary excitement
Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper submission "if the people are not sufficiently
affirmed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner. ... .." 50
As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others the proposed granting of dual legislative
powers to both the President and the Batasang Pambansa and remarking
that "This dual legislative authority can give rise to confusion and serious
constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form and
violate the cardinal rule of amendments of written constitutions that the
specific provisions of the Constitution being repealed or amended as well as
how the specific provisions as amended would read, should be clearly stated
in careful and measured terms. There can be no proper submission because
the vagueness and ambiguity of the proposals do not sufficiently inform the
people of the amendments for, conscientious deliberation and intelligent
consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that
the principal thrust of the proposals is to substitute the interim National
Assembly with an interim Batasang Pambansa, a serious study thereof in
detail would lead to the conclusion that the whole context of the 1973
Constitution proper would be affected and grave amendments and
modifications thereof -would apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim
Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is
withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim
Batasang Pambansa within 30 days from the election and selection of the
members (for which there is no fixed date) the incumbent President
apparently becomes a regular President and Prime Minister (not ad interim);
Plain honesty dictates that I should make of record here the pertinent
contents of the official report of the Executive Committee of the Katipunan ng
mga Sanggunian submitted to the Katipunan itself about the proceedings
held on August 14, 1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A
LEGISLATIVE body came out when the President express his desire to
share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution
Association (PHILCONSA) headed by Supreme Court Justice Antonio
Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa'
or 'Batasang Pambansa' which would help the President in the performance
of his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at
this time considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000
barangay assemblies on August 1 suggested that the people be consulted
on a proposal to create a new legislative body to replace the interim
assembly provided for by the Constitution. The suggestion of the barangay
units was made through their national association, Pambansang Katipunan
ng mga Barangay headed by Mrs. Nora Z. Patines. She said that the people
have shown in at least six instances including in the two past referenda that
they are against the convening of the interim National Assembly. She also
said that since the people had ruled out the calling of such assembly and
that they have once proposed that the President create instead the
Sangguniang Pambansa or a legislative advisory body, then the proposal to
create a new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like
their elder counterparts in the Katipunan ng mga Barangay also asserted
their own right to be heard on whatever plans are afoot to convene a new
legislative body.
On August 6, a meeting of the national directorate of PKB was held to
discuss matters pertaining to the stand of the PKB with regards to the
convening of a new legislative body. The stand of the PKB is to create a
legislative advisory council in place of the old assembly. Two days after,
August 8, the Kabataang Barangay held a symposium and made a stand
which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to
discuss more intellegently the proposal to create a new legislative body was
made by various urban and rural Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and
61 city SB assemblies, were forwarded to the Department of Local
Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the
request by convening the 91 member National Executive Committee of the
Pambansang Katipunan ng mga Sanggunian on August 14 which was held
at Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and deliberations
that have culminated in the holding of the proposed referendum- plebiscite
on October 16, 1976, which petitioners are here seeking to enjoin, has been
more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to publicly articulate
the need for the creation of an interim legislative body to take the place of.
the interim National Assembly provided for in the Transitory Provisions of the
Constitution, as suggested in the above report, I might say that I was the one
most vehement and persistent in publicly advocating and urging the
authorities concerned to directly submit to the people in a plebiscite whatever
in this regard. I feel that it must have been precisely because of such
awareness that despite my known public participation in the discussion of the
questions herein involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal inclinations to affect the objectivity
needed in the resolution of any judicial question before the Court. I feel I
have always been able to appreciate, fully consider and duly weigh
arguments and points raised by all counsels, even when they conflict with my
previous views. I am never beyond being convinced by good and substantial
ratiocination. Nothing has delighted me more than to discover that somebody
else has thought of more weighty arguments refuting my own, regardless of
what or whose interests are at stake. I would not have accepted my position
in the Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a judge has preconceptions that counts,
it is his capacity and readiness to absorb contrary views that are
indispensable for justice to prevail. That suspicions of prejudgment may likely
arise is unavoidable; but I have always maintained that whatever improper
factors might influence a judge will unavoidably always appear on the face of
the decision. In any event, is there better guarantee of justice when the
preconceptions of a judge are concealed?
Withal, in point of law, I belong to the school of thought that regards
members of the Supreme Court as not covered by the general rules relative
to disqualification and inhibition of judges in cases before them. If I have in
practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal
reasons, specially because, anyway, my vote would not have altered the
results therein.
I would not be human, if I did not consider myself privileged in having been
afforded by Divine Providence the opportunity to contribute a modest share
in the formulation of the steps that should lead ultimately to the lifting of
martial law in our country. Indeed, I am certain every true Filipino is anxiously
looking forward to that eventuality. And if for having voiced the sentiments of
our people, where others would have preferred to be comfortably silent, and
if for having made public what every Filipino must have been feeling in his
heart all these years, I should be singled out as entertaining such
preconceived opinions regarding the issues before the Court in the cases at
bar as to preclude me from taking part in their disposition, I can only say that
I do not believe there is any other Filipino in and out of the Court today who
is not equally situated as I am .
The matters that concern the Court in the instant petitions do not involve
merely the individual interests of any single person or group of persons.
Besides, the stakes in these cases affect everyone commonly, not
individually. The current of history that has passed through the whole country
in the wake of martial law has swept all of us, sparing none, and the problem
of national survival and of restoring democratic institutions and Ideals is
seeking solution in the minds of all of us. That I have preferred to discuss
publicly my own thoughts on the matter cannot mean that my colleagues in
the Court have been indifferent and apathetic about it, for they too are
Filipinos. Articulated or not, all of us must have our own preconceived Ideas
and notions in respect to the situation that confronts the country. To be sure,
our votes and opinions in the- major political cases in the recent past should
more or less indicate our respective basic positions relevant to the issues
now before Us. Certainly, contending counsels cannot be entirely in the dark
The very nature of the office of Justice of the Supreme Court as the tribunal
of last resort and bulwark of the rights and liberties of all the people demands
that only one of dependable and trustworthy probity should occupy the same.
Absolute integrity, mental and otherwise, must be by everyone who is
appointed thereto. The moral character of every member of the Court must
be assumed to be such that in no case whatsoever. regardless of the issues
and the parties involved, may it be feared that anyone's life, liberty or
property, much less the national interests, would ever be in jeopardy of being
unjustly and improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of rising above
himself in every case and of having full control of his emotions and
prejudices, such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the appointing
power, to whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All appointments to the
Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I
shall now address myself to the grave issues submitted for Our resolution.
-IIn regard to the first issue as to whether the questions posed in the petitions
herein are political or justiciable, suffice it for me to reiterate the fundamental
position I took in the Martial Law cases, 1 thus
As We enter the extremely delicate task of resolving the grave issues
thus thrust upon Us. We are immediately encountered by absolute
verities to guide Us all the way. The first and most important of them is
that the Constitution (Unless expressly stated otherwise, all references
to the Constitution in this discussion are to both the 1935 and 1973
charters, since, after all, the pertinent provisions are practically Identical
in both is the supreme law of the land. This means among other things
that all the powers of the government and of all its officials from the
President down to the lowest emanate from it. None of them may
exercise any power unless it can be traced thereto either textually or by
natural and logical implication. "The second is that it is settled that the
Judiciary provisions of the Constitution point to the Supreme Court as
the ultimate arbiter of all conflicts as to what the Constitution or any part
thereof means. While the other Departments may adopt their own
construction thereof, when such construction is challenged by the
proper party in an appropriate case wherein a decision would be
impossible without determining the correct construction, the Supreme
Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive power conferred
upon the Executive by the Constitution is complete, total and unlimited,
so also, the judicial power vested in the Supreme Court and the inferior
courts, is the very whole of that power, without any limitation or
qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of all, that the
main question before Us is not in reality one of jurisdiction, for there
can be no conceivable controversy, especially one involving a conflict
as to the correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified,
it extends over all situations that call for the as certainment and
protection of the rights of any party allegedly violated, even when the
alleged violator is the highest official of the land or the government
itself. It is, therefore, evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne in mind that in the form of
government envisaged by the framers of the Constitution and adopted
by our people, the Court's indisputable and plenary authority to decide
does not necessarily impose upon it the duty to interpose its fiat as the
only means of settling the conflicting claims of the parties before it. It is
Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be and the
President "in deference to the sovereign will of the Filipino people" declared
that the convening of said body shall be suspended. 12 As this Court
observed in the Aquino case:
October 16. The political character of the question is, therefore, particularly
manifest, considering that ultimately it is the people who will decide whether
the President has such authority. It certainly involves a matter which is to be
exercised by the people in their sovereign capacity, hence, it is essentially
political, not judicial.
While it is true that the constituent power is not to be confuse with legislative
power in general because the prerogative to propose amendments is not
embraced within the context of ordinary lawmaking, it must be noted that the
proposals to be submitted for ratification in the forthcoming referendum are,
in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage
of the transition period of our political development, the conclusion is
ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on whether or not the President is
vested with constituent power - as it does not appear necessary to do
so in the premises - the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not
only because the President, in exercising said authority, has acted as a
mere ofiffet byf of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than
constituent.
Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be accepted as a necessary consequence that
their objection against the immediate convening of the interim National
Assembly must be respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people
and all government authority emanates from them."13 The term "People" as
sovereign is comprehensive in its context. The people, as sovereign creator
of all political reality, is not merely the enfranchised citizens but the political
unity of the people. 14 It connotes, therefore, a people which exists not only
in the urgent present but in the continuum of history. The assumption that the
opinion of The People as voters can be treated as the expression of the
interests of the People as a historic community was, to the distinguished
American journalist and public philosopher, Walter Lipunan, unwarranted.
This is but a recognition that the People of the Philippines have the
inherent, sole and exclusive right of regulating their own government,
and of altering or abolishing their Constitution whenever it may be
necessary to their safety or happiness. There appears to be no
justification, under the existing, circumstances, for a Court to create by
implication a limitation on - the sovereign power of the people. As has
been clearly explained in a previous case:
accorded the fullest opportunity to decide the laws that shall provide for their
governance. For in the ultimate analysis, the success of the national
endeavor shall depend on the vision, discipline and I by ininess of the
moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.
should not be construed as limiting the ultimate sovereign will of the people
to decide on amendments to the Constitution .2 Such a view will seriously
undermine the very existence of a constitutional government and will permit
anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the
rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:
country. To my mind, the only possible measure that will lead our country and
people to a condition of normalcy is the lifting or ending of the state of martial
law. If I am constrained to make this statement it is because so much stress
was given during the hearings of these cases on this particular point, leaving
one with the impression that for petitioners to contest the holding of the
October 16 referendum-plebiscite is for them to assume a position of
blocking or installing the lifting of martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the connection between the two. My
esteemed colleagues should pardon me therefore if I had ventured to state
that the simple solution to the simple solution to the present dilemma is the
lifting of martial law and the implementation of the constitutional provisions
which will usher in the parliamentary form of government ordained in the
Constitution, which, as proclaimed in Proclamation 1102, the people
themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound
by their act and cannot escape from the pretended unfavorable
consequences thereof, the only y being to set in motion the constitutional
machinery by which the supposed desired amendments may properly be
adopted and submitted to the electorate for ratification. Constitutional
processes are to be observed strictly, if we have to maintain and preserve
the system of government decreed under the fundamental Charter. As said
by Justice Enrique Fernando in Mutuc vs. Commission on Elections
... The concept of the Constitution as the fundamental
law, setting forth the criterion for the validity of any
public act whether proceeding from the highest official
or the lowest funcitonary, is a postulate of our system
of government. That is to manifest fealty to the rule of
law, with priority accorded to that which occupies the
topmost rung in the legal hierarchy. ... (36 SCRA, 228,
234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of
Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye,
(supra, p. 7) liberty and popular sovereignty are not meant to give rein to
passion or thoughtless impulse but to allow the exercise of power by the
people for the general good by tistlercoitaitt restraints of law. 3 . The true
question before Us is is one of power. Does the incumbent President of the
Philippines possess constituent powers? Again, the negative answer is
explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent
powers on theory that he is vested with legislative powers as held by this
Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L40004, January 31, 1975. 1 wish to stress that although in my separate
opinion in said case I agreed that Section 3 (2) of the Transitory provisions
grants to the incumbent President legislative powers, I qualified my
statement as follows:
.... As to, whether, or not, this unlimited legislative
qqqjwwel of the President continues by exist even after
the ratification of the Constitution is a matter which I
am not ready to concede at the moment, and which at
any rate I believe is not essential in resolving this
Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue
proclamations, orders, decrees, etc. to carry out and
implement the objectives of the proclamation of martial
law be it under the 1935 or 1973 Constitution, and for
the orderly and efficient functioning of the government,
its instrumentalities, and agencies. This grant of
legislative power is necessary to fill up a vacuum
during the transition period when the interim National
Assembly is not yet convened and functioning, for
otherwise, there will be a disruption of official functions
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA &
CARMEN PEDROSA, in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI),
INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly
propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent 1 and the main sponsor 2 of
the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative". 3 Indeed it is, for both under the
1935 and 1973 Constitutions, only two methods of proposing amendments
to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed, we resolved
to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a
"Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by
People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the
COMELEC for an order
1. Fixing the time and dates for signature gathering all
over the country;
2. Causing the necessary publications of said Order
and the attached "Petition for Initiative on the 1987
Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time
and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement
for People's Initiative, 6 a group of citizens desirous to avail of the system
intended to institutionalize people power; that he and the members of the
Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article
XVII of the Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories;
that before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first
(1) Contrary to the claim of the petitioners, there is a law, R.A. No.
6735, which governs the conduct of initiative to amend the Constitution.
The absence therein of a subtitle for such initiative is not fatal, since
subtitles are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as of
the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a
few specific provisions of the Constitution, or more specifically, only
those which lay term limits. It does not seek to reexamine or overhaul
the entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners' estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it
will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary
in R.A. No. 6735 because, being national in scope, that system
of initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that
R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section
20 of R.A. No. 6735 and under the Omnibus Election Code. The rulemaking power of the COMELEC to implement the provisions of R.A.
No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to
Lift Temporary Restraining Order filed by private respondents through Atty.
Quadra, as well as the latter's Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition
in Intervention not later than 20 January 1997; and (d) set the case for
hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
and the Movement of Attorneys for Brotherhood Integrity and Nationalism,
Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was
their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J., 18 it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 Arevision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of
the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on
the philosophy of governance, "to open up the political arena to as
many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers
in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good";
hence, to remove the term limits is to negate and nullify the noble vision
of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a
premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who
may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency
of the petition, (h) the appeal from any decision of the COMELEC, (I)
the holding of a plebiscite, and (g) the appropriation of funds for such
people's initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without
authority to legislate the procedure for a people's initiative under
Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a
legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he coauthored the House Bill and even delivered a sponsorship speech thereon.
He likewise submits that the COMELEC was empowered under Section 20 of
The Congress shall provide for the implementation of the exercise of this
right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus,
although this mode of amending the Constitution is a mode of
amendment which bypasses congressional action, in the last
analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to
the Constitution through the system of initiative would remain entombed in
the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized
or granted that right, the people cannot exercise it if Congress, for
whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No.
332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article___ Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of
the complete committee report. With the permission of the Members,
may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to the
legislature?
MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.
37
with
The Congress shall provide for the implementation of the exercise of
this right.
This substitute amendment was an investiture on Congress of a power
to provide for the rules implementing the exercise of the right. The
"rules" means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the
House of Representatives on the basis of two House Bills referred to it, viz.,
(a) House Bill No. 497, 47 which dealt with the initiative and referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as
with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and
House Bill No. 21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate 50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress
to "provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of
the Act does not suggest an initiative on amendments to the Constitution.
The said section reads:
Sec. 2. Statement and Policy. The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor relevant to said section,
which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not
accorded the power to "directly propose, enact, approve, or reject, in
whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section
was lifted from Section 1 of Senate Bill No. 17, which solely referred to a
statement of policy on local initiative and referendum and appropriately used
the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it as one
of the three systems of initiative, and that Section 5 (Requirements) restates
the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition
forinitiative on the Constitution. Section 5, paragraph (c) requires, among
Hence, to complete the classification under subtitles there should have been
a subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(1) Delegation of tariff powers to the President under Section 28(2) of Article
VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of
legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate and
determinable to which the delegate must conform in the performance of
his functions. 61 A sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command
is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned,
R.A. No. 6735 miserably failed to satisfy both requirements in subordinate
legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT
PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT
OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS
VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELEC's
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with
the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A.
No. 6735, a petition for initiative on the Constitution must be signed by at
least 12% of the total number of registered voters of which every legislative
district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters.
Delfin himself admits that he has not yet gathered signatures and that the
purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed
validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only participation of the
COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records
and Statistics Office a certificate on the total number of registered voters in
each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters'
affidavits, and voters' identification cards used in the immediately preceding
election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The respondent Commission must have
known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence, the
said petition was merely entered as UND, meaning, undocketed. That
petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12
December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the
proposal to lift the term limits of elective national and local officials is
an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and
blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation
of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission
on Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice
Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I
regret, however, I cannot share the view that R.A. No. 5735 and COMELEC
Resolution No. 2300 are legally defective and cannot implement the people's
initiative to amend the Constitution. I likewise submit that the petition with
respect to the Pedrosas has no leg to stand on and should be dismissed.
With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our effort to
discover the meaning of R.A. No. 6735 should start with the search of the
intent of our lawmakers. A knowledge of this intent is critical for the intent of
the legislature is the law and the controlling factor in its
interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit
which gives life to its enactment. 2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution." It
ought to be so for this intent is crystal clear from the history of the law which
was a consolidation of House Bill No. 21505 3 and Senate Bill No.
17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of
Initiative and Referendum and the Exception Therefrom, Whereby People in
Local Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include
people's initiative to propose amendments to the Constitution. In checkered
contrast, House Bill No. 21505 5 expressly included people's initiative to
amend the Constitution. Congressman (now Senator) Raul Roco
emphasized in his sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the
constitutional basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which
was introduced by the 1935 Constitution saw the application of the
principle of separation of powers.
He further explained that the bill has only 12 sections, and recalled
that the Constitutional Commissioners saw the system of the
initiative and referendum as an instrument which can be used should
the legislature show itself to be indifferent to the needs of the people.
This is the reason, he claimed, why now is an opportune time to
pass the Bill even as he noted the felt necessity of the times to pass
laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and
referendum as advocated in House Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment,
submit a Bill for the consideration of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the
initiative to amend the Constitution once every five years; the
initiative to amend statutes approved by Congress; and the initiative
to amend local ordinances.
3. The instant Bill gives a definite procedure and allows the
Commission on Elections (COMELEC) to define rules and
regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the
people on measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum
which is a mode of plebiscite by presenting a petition therefor, but
under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every
legislative district is represented by at least three percent of the
registered voters thereof. Within 30 days after receipt of the petition,
the COMELEC shall determine the sufficiency of the petition, publish
the same, and set the date of the referendum within 45 to 90-day
period.
6. When the matter under referendum or initiative is approved by the
required number of votes, it shall become effective 15 days following
the completion of its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the
Members cannot ignore the people's call for initiative and
referendum and urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his
speech together with the footnotes be reproduced as part of the
Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative
to amend the Constitution was stressed by then Congressman (now
Secretary of Agriculture) Salvador Escudero III in his sponsorship
remarks, viz: 7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for
a truly popular democracy ever since, especially in the so-called
parliament of the streets. A substantial segment of the population feels,
he said, that the form of democracy is there, but not the reality or
substance of it because of the increasingly elitist approach of their
representatives to the country's problem.
H.B.
NO.
C.C.R.
21505
Third, the law provides the requirements for a petition for initiative to amend
the Constitution. Section 5(b) states that "(a) petition for an initiative on the
1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district
must be represented by at least threeper centum (3%) of the registered
voters therein." It also states that "(i)nitiative on the Constitution may be
exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section
9(b) states that "(t)he proposition in an initiative on the Constitution approved
by a majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretation
of R.A. No. 6735 to defeat its intent which it itself concedes is to implement
people's initiative to propose amendments to the Constitution. Thus, it
laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate.
These lapses are to be expected for laws are not always written in
impeccable English. Rightly, the Constitution does not require our legislators
to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been
our good policy not to refuse to effectuate the intent of a law on the ground
that it is badly written. As the distinguished Vicente Francisco 13 reminds us:
"Many laws contain words which have not been used accurately. But the use
of inapt or inaccurate language or words, will not vitiate the statute if the
legislative intention can be ascertained. The same is equally true with
reference to awkward, slovenly, or ungrammatical expressions, that is, such
expressions and words will be construed as carrying the meaning the
legislature intended that they bear, although such a construction
necessitates a departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include people's
initiative to amend the Constitution simply because it lacks a sub-title on the
subject should be given the weight of helium. Again, the hoary rule in
statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences
drawn therefrom are entitled to very little weight, and they can never control
the plain terms of the enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to
enforce the manifest intent or spirit of R.A. No. 6735 to implement the
people's initiative to amend the Constitution. It blatantly disregards the rule
cast in concrete that the letter of the law must yield to its spirit for the letter of
the law is its body but its spirit is its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the
procedure on how to exercise the people's initiative to amend the
Constitution. This is in accord with the delegated power granted by section
20 of R.A. No. 6735 to the COMELEC which expressly states: "The
Commission is hereby empowered to promulgate such rules and regulations
as may be necessary to carry out the purposes of this Act." By no means can
this delegation of power be assailed as infirmed. In the benchmark case
of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto
Concepcion laid down the test to determine whether there is undue
delegation of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government
the power to fill details in the execution, enforcement or administration
of a law, it is essential, to forestall a violation of the principle of
government." 40 A due regard and respect to the legislature, a coequal and coordinate branch of government, should counsel this
Court to refrain from refusing to effectuate laws unless they are
clearly unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with
respect to the Pedrosas. The inclusion of the Pedrosas in the petition is
utterly baseless. The records show that the case at bar started when
respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's
Initiative. The Pedrosas did not join the petition. It was Senator Roco who
moved to intervene and was allowed to do so by the COMELEC. The petition
was heard and before the COMELEC could resolve the Delfin petition, the
case at bar was filed by the petitioners with this Court. Petitioners sued the
COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their
capacities as founding members of the People's Initiative for Reform,
Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of
preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The
only allegation against the Pedrosas is that they are founding members of
the PIRMA which proposes to undertake the signature drive for people's
initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed
that we order the Pedrosas ". . . to desist from conducting a signature drive
for a people's initiative to amend the Constitution." On December 19, 1996,
we temporarily enjoined the Pedrosas ". . . from conducting a signature drive
for people's initiative to amend the Constitution." It is not enough for the
majority to lift the temporary restraining order against the Pedrosas. It should
dismiss the petition and all motions for contempt against them without
equivocation.
One need not draw a picture to impart the proposition that in soliciting
signatures to start a people's initiative to amend the Constitution the
Pedrosas are not engaged in any criminal act. Their solicitation of signatures
is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may
likewise be directly proposed by the people through initiative. . ." This right
springs from the principle proclaimed in section 1, Article II of the
Constitution that in a democratic and republican state "sovereignty resides in
the people and all government authority emanates from them." The
Pedrosas are part of the people and their voice is part of the voice of the
people. They may constitute but a particle of our sovereignty but no power
can trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The
right of the people and their organizations to effective and reasonable
participation at all levels of social, political and economic decision-making
shall not be abridged. The State shall by law, facilitate the establishment of
adequate consultation mechanisms." This is another novel provision of the
1987 Constitution strengthening the sinews of the sovereignty of our people.
In soliciting signatures to amend the Constitution, the Pedrosas are
participating in the political decision-making process of our people. The
Constitution says their right cannot be abridged without any ifs and buts. We
cannot put a question mark on their right.
Over and above these new provisions, the Pedrosas' campaign to amend the
Constitution is an exercise of their freedom of speech and expression and
their right to petition the government for redress of grievances. We have
memorialized this universal right in all our fundamental laws from the Malolos
Constitution to the 1987 Constitution. We have iterated and reiterated in our
rulings that freedom of speech is a preferred right, the matrix of other
important rights of our people. Undeniably, freedom of speech enervates the
essence of the democratic creed of think and let think. For this reason, the
Constitution encourages speech even if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a
people's initiative to amend the Constitution does not depend on any law,
much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no
Constitution can chain the people to an undesirable status quo. To be sure,
there are no irrepealable laws just as there are no irrepealable Constitutions.
Change is the predicate of progress and we should not fear change.
Mankind has long recognized the truism that the only constant in life is
change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded
in the 1987 Constitution. On October 5, 1993, we observed that people's
might is no longer a myth but an article of faith in our Constitution. 41 On
September 30, 1994, we postulated that people power can be trusted to
check excesses of government and that any effort to trivialize the
effectiveness of people's initiatives ought to be rejected. 42 On September 26,
1996, we pledged that ". . . this Court as a matter of policy and doctrine will
exert every effort to nurture, protect and promote their legitimate
exercise." 43Just a few days ago, or on March 11, 1997, by a unanimous
decision, 44 we allowed a recall election in Caloocan City involving the mayor
and ordered that he submits his right to continue in office to the judgment of
the tribunal of the people. Thus far, we have succeeded in transforming
people power from an opaque abstraction to a robust reality. The
Constitution calls us to encourage people empowerment to blossom in full.
The Court cannot halt any and all signature campaigns to amend the
Constitution without setting back the flowering of people empowerment.
More important, the Court cannot seal the lips of people who are pro-change
but not those who are anti-change without concerting the debate on charter
change into a sterile talkaton. Democracy is enlivened by a dialogue and not
by a monologue for in a democracy nobody can claim any infallibility.
The Delfin petition is thus utterly deficient. Instead of complying with the
constitutional imperatives, the petition would rather have much of its burden
passed on, in effect, to the COMELEC. The petition would require
COMELEC to schedule "signature gathering all over the country," to cause
the necessary publication of the petition "in newspapers of general and local
circulation," and to instruct "Municipal Election Registrars in all Regions of
the Philippines to assist petitioners and volunteers in establishing signing
stations at the time and on the dates designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which,
consequentially, is made permanent under theponencia should be held to
cover only the Delfin petition and must not be so understood as having
intended or contemplated to embrace the signature drive of the Pedrosas.
The grant of such a right is clearly implicit in the constitutional mandate on
people initiative.
The distinct greatness of a democratic society is that those who reign are the
governed themselves. The postulate is no longer lightly taken as just a
perceived myth but a veritable reality. The past has taught us that the vitality
of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can
only have its true meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and
substance, it behooves the Court, I most respectfully submit, to yet refrain
from resolving the question of whether or not Republic Act No. 6735 has
effectively and sufficiently implemented the Constitutional provision on right
of the people to directly propose constitutional amendments. Any opinion or
view formulated by the Court at this point would at best be only a nonbinding, albeit possibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that
the TRO earlier issued by the Court did not prescribe the exercise by the
Pedrosas of their right to campaign for constitutional amendments.
It is a rule that every part of the statute must be interpreted with reference
the context, i.e., that every part of the statute must be construed together
with the other parts and kept subservient to the general intent of the whole
enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be
extracted from the statute as a whole. 5
In its definition of terms, Republic Act No. 6735 defines initiative as "the
power of the people to propose amendments to the constitution or to
propose and enact legislations through an election called for the
purpose". 6The same section, in enumerating the three systems of initiative,
included an "initiative on the constitution which refers to a petition proposing
amendments to the constitution" 7 Paragraph (e) again of Section 3 defines
"plebiscite" as "the electoral process by which an initiative on the constitution
is approved or rejected by the people" And as to the material requirements
for an initiative on the Constitution, Section 5(b) distinctly enumerates the
following:
MR. ROCO. In fact, the Senate version provided purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.
MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.
Thus:
A petition for an initiative on the 1987 Constitution must have at least
twelve per centum (12%) of the total number of registered voters as
signatories, of which every legislative district must be represented by at
least three per centum (3%) of the registered voters therein. Initiative
on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years
thereafter.
Here private respondents' petition is unaccompanied by the
required signatures. This defect notwithstanding, it is without
prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private
respondents. In the absence, therefore, of an appropriate petition
before the Commission on Elections, any determination of
whether private respondents' proposal constitutes an amendment
or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in
the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a
people's initiative to propose amendments to the Constitution. I, however,
register my concurrence with the dismissal, in the meantime, of private
respondents' petition for initiative before public respondent Commission on
Elections until the same be supported by proof of strict compliance with
Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the
majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion
in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA
6735 is "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
regulations on the conduct of initiative on amendments to the Constitution, is
void."
I concur with the first item above. Until and unless an initiatory petition can
show the required number of signatures in this case, 12% of all the
registered voters in the Philippines with at least 3% in every legislative
district no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot
even entertain any petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the
Constitution cannot be amended at all through a people's initiative. Not by
Delfin, not by Pirma, not by anyone, not even by all the voters of the country
acting together. This decision will effectively but unnecessarily curtail, nullify,
abrogate and render inutile the people's right to change the basic law. At the
very least, the majority holds the right hostage to congressional discretion on
whether to pass a new law to implement it, when there is already one
existing at present. This right to amend through initiative, it bears stressing,
is guaranteed by Section 2, Article XVII of the Constitution, as follows:
the
Pedrosa
I am glad the majority decided to heed our plea to lift the temporary
restraining order issued by this Court on 18 December 1996 insofar as it
prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their
right of initiative. In fact, I believe that such restraining order as against
private respondents should not have been issued, in the first place. While I
agree that the Comelec should be stopped from using public funds and
government resources to help them gather signatures, I firmly believe that
this Court has no power to restrain them from exercising their right of
initiative. The right to propose amendments to the Constitution is really a
species of the right of free speech and free assembly. And certainly, it would
be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent Voltaire once
said, "I may disagree with what you say, but I will defend to the death your
right to say it." After all, freedom is not really for the thought we agree with,
but as Justice Holmes wrote, "freedom for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
Initiative, like referendum and recall, is a new and treasured feature of the
EN BANC
RAUL L. LAMBINO and ERICO B.
AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS,
Petitioners,
Promulgated:
October 25, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August
2006 of the Commission on Elections (COMELEC) denying due course to
an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.
Lambino and Erico B. Aumentado (Lambino Group), with other
groups[1] and individuals, commenced gathering signatures for an
initiative petition to change the 1987 Constitution. On 25 August 2006, the
Lambino Group filed a petition with the COMELEC to hold a plebiscite that
will ratify their initiative petition under Section 5(b) and (c)[2] and Section
7[3] of Republic Act No. 6735 or the Initiative and Referendum Act
(RA 6735).
The Lambino Group alleged that their petition had
the support of 6,327,952 individuals constituting at least twelve per
centum (12%) of all registered voters, with each legislative district
represented by at least three per centum (3%) of its registered voters. The
Lambino Group also claimed that COMELEC election registrars had verified
the signatures of the 6.3 million individuals.
The Lambino Groups initiative petition changes the 1987
Constitution by modifying Sections 1-7 of Article VI (Legislative Department)
[4]
and Sections 1-4 of Article VII (Executive Department) [5] and by adding
Article XVIII entitled Transitory Provisions. [6] These proposed changes will
shift the present Bicameral-Presidential system to a UnicameralParliamentary form of government. The Lambino Group prayed that after
due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters ratification:
DO YOU APPROVE THE AMENDMENT OF
ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT
FROM
THE
PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERALPARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO
THE OTHER?
In G.R. No. 174153, the Lambino Group prays for the issuance of the
writs of certiorari and mandamus to set aside the COMELEC Resolution
of 31 August 2006 and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their
petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case, and
their petition deserves cognizance as an expression of the will of the
sovereign people.
In G.R. No. 174299, petitioners (Binay Group) pray that the Court
require respondent COMELEC Commissioners to show cause why
theyshould not be cited in contempt for the COMELECs verification of
signatures and for entertaining the Lambino Groups petition despite the
permanent injunction in Santiago. The Court treated the Binay
Groups petition as an opposition-in-intervention.
In his Comment to the Lambino Groups petition, the Solicitor General
joined causes with the petitioners, urging the Court to grant the petition
despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules as temporary devises to
implement the system of initiative.
Various groups and individuals sought intervention, filing
pleadings supporting or opposing the Lambino Groups petition. The
supporting intervenors[10] uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying on Santiago. On the other
hand, the opposing intervenors[11] hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Groups standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino
Groups compliance with the minimum requirement for the percentage of
voters supporting an initiative petition under Section 2, Article XVII of the
1987 Constitution;[12](4) the nature of the proposed changes as revisions and
not mere amendments as provided under Section 2, Article XVII of the 1987
Constitution; and (5) the Lambino Groups compliance with the requirement
in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties memoranda, the Court
considered the case submitted for resolution.
The Issues
1.
2.
3.
The Initiative Petition Does Not Comply with Section 2, Article XVII
of the Constitution on Direct Proposal by the People
Likewise, in Kerr
of Oregon explained:
v.
of
Appeals
City/Municipality:
Legislative District:
Barangay:
No. of
Verified
Signatures:
Precinct Number
Name
Last Name, First Name, M.I.
1
2
3
4
5
6
7
8
9
10
_________________
_________________
__________
Barangay
Official
Witness
Witness
(Print
Name
and
Sign)
(Print
Sign)
(Print Name and Sign)
________
Name
and
Address
2.
Sec.
2. Amendments
to
this
Constitution may likewise be directly proposed by
the people through initiative x x x. (Emphasis
supplied)
MS. AQUINO:
In other words, the Committee
was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of
initiation to amend, which is given to the public,
would only apply to amendments?
xxxx
MR.
MAAMBONG: My
first
question:
Commissioner Davide's proposed amendment on
line 1 refers to "amendments." Does it not cover
the word "revision" as defined by Commissioner
Padilla when he made the distinction between the
words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because
"amendments" and "revision" should be covered
by Section 1. So insofar as initiative is concerned,
it can only relate to "amendments" not "revision."
MR.
MAAMBONG: Thank
supplied)
you.[31] (Emphasis
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Groups theory. Where the intent of the
framers and the language of the Constitution are clear and plainly stated,
courts do not deviate from such categorical intent and language. [45] Any
theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by
creating inconsistencies in the form of government established in the
Constitution. Such a theory, devoid of any jurisprudential mooring and
inviting inconsistencies in the Constitution, only exposes the flimsiness of the
Lambino Groups position. Any theory advocating that a proposed change
involving a radical structural change in government does not constitute a
revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative
proponents in American jurisdictions have attempted to advance without any
success. In Lowe v. Keisling,[46] the Supreme Court of Oregon rejected
this theory, thus:
Mabon argues that Article XVII, section 2,
does not apply to changes to the constitution proposed
by initiative. His theory is that Article XVII, section
2 merely provides a procedure by which the
legislature
can
propose
a revision of
the constitution, but it does not affect
proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot
measure constitutes a wholesale change to
the constitution that cannot be enacted through
the initiative process. They
assert
that
the distinction between amendment and revision is
determined by reviewing the scope and subject matter
of the proposed enactment, and that revisions are not
limited
to
a
formal
overhauling
of
the constitution. They argue that this ballot measure
proposes far reaching changes outside the lines of the
original instrument, including profound impacts on
existing fundamental rights and radical restructuring of
the government's relationship with a defined group of
citizens. Plaintiffs assert that, because the proposed
ballot measure will refashion the most basic principles
of Oregon constitutional law, the trial court correctly
held that it violated Article XVII, section 2, and cannot
appear on the ballot without the prior approval of the
legislature.
We first address Mabon's argument that
Article
XVII,
section
2(1), does
not
prohibit revisions instituted by initiative. In Holmes v.
Appling, x x x, the Supreme Court concluded that
a revision of the constitution may not be accomplished
by initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1,
relating to proposed amendments, the court said:
From the foregoing it appears that Article
IV, Section 1, authorizes the use of
the initiative as a means of amending the
Oregon Constitution, but it contains no
similar sanction for its use as a means
of revising the constitution. x x x x
It then reviewed Article XVII, section 2,
relating to revisions, and said: It is the only section of
the constitution which
provides
the
means
for constitutionalrevision and it excludes the idea that
Accordingly,
we
reject
Mabon's
argument that Article XVII, section 2, does not
apply
to constitutional revisions proposed
by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Groups theory which negates
the express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at
one end green for amendments and at the other end red for
revisions. Towards the middle of the spectrum, colors fuse and difficulties
arise in determining whether there is an amendment or revision. The
present initiative is indisputably located at the far end of the red spectrum
where revision begins.
The present initiative seeks a radical overhaul of
the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and
articles of the Constitution.
Where the proposed change applies only to a specific provision of the
Constitution without affecting any other section or article, the change may
generally be considered an amendment and not a revision. For example, a
change reducing the voting age from 18 years to 15 years [47] is an
amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an
amendment and not a revision.[48] Also, a change requiring a college degree
as an additional qualification for election to the Presidency is an amendment
and not a revision.[49]
The changes in these examples do not entail any modification of
sections or articles of the Constitution other than the specific provision being
amended. These changes do not also affect the structure of government or
the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum,
opposite the far red end where the revision sought by the present petition is
located.
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one sentence of the
Constitution may be a revision and not an amendment. For example, the
substitution of the word republican with monarchic or theocratic in
Section 1, Article II[50] of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be examined case-bycase, depending on how it affects other provisions, as well as how it affects
the structure of government, the carefully crafted system of checks-andbalances, and the underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or
several provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles with
those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions
to undertake revisions. On the other hand, constitutions allow peoples
initiatives, which do not have fixed and identifiable deliberative bodies or
recorded proceedings, to undertake only amendments and not revisions.
This drives home the point that the peoples initiative is not meant
for revisions of the Constitution but only for amendments. A shift from the
present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the
Constitution.
Revision of the Constitution through a
peoples initiative will only result in gross absurdities in the Constitution.
3.
Conclusion
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice