1-26 FT

CONSTITUTIONAL LAW REVIEW CASES 1
1. PEOPLE V.
PERFECTO
2. MACARIOLA V.
ASUNCION
3. MANILA PRINCE
HOTEL V. GSIS
4. CHAVEZ V.
JUDICIAL & BAR
COUNCIL
5. PERFECTO V.
MEER
6. ENDENCIA V.
DAVID
7. NITAFAN V. CIR
8. REPUBLIC V. SB
9. AQUINO, JR. V.
ENRILE
10.
JAVELLANA
V. EXEC.
SECRETARY
11.
OCCENA V.
COMELEC
12.
PHIL. BAR
ASSOC. V.
1. PEOPLE V PERFECTO
G.R. No. L-18463
October 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The important question is here squarely presented of whether article 256 of the
Spanish Penal Code, punishing "Any person who, by . . . writing, shall defame,
abuse, or insult any Minister of the Crown or other person in authority . . .," is still in
force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M.
Guerrero, discovered that certain documents which constituted the records of
testimony given by witnesses in the investigation of oil companies, had disappeared
from his office. Shortly thereafter, the Philippine Senate, having been called into
special session by the Governor-General, the Secretary for the Senate informed that
body of the loss of the documents and of the steps taken by him to discover the
guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading
as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous
robbery of records which were kept and preserved in the iron safe of the Senate, yet
up to this time there is not the slightest indication that the author or authors of the
crime will ever be discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente itself, and
the persons in charge of the investigation of the case would not have to display
great skill in order to succeed in their undertaking, unless they should encounter the
insuperable obstacle of offical concealment.
In that case, every investigation to be made would be but a mere comedy and
nothing more.
After all, the perpetration of the robbery, especially under the circumstances that
have surrounded it, does not surprise us at all.
The execution of the crime was but the natural effect of the environment of the
place in which it was committed.
How many of the present Senators can say without remorse in their conscience and
with serenity of mind, that they do not owe their victory to electoral robbery? How
may?
The author or authors of the robbery of the records from the said iron safe of the
Senate have, perhaps, but followed the example of certain Senators who secured
their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920, adopted a resolution
authorizing its committee on elections and privileges to report as to the action
which should be taken with reference to the article published in La Nacion. On
September 15, 1920, the Senate adopted a resolution authorizing the President of
the Senate to indorse to the Attorney-General, for his study and corresponding
action, all the papers referring to the case of the newspaper La Nacionand its editor,
Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of
the City of Manila by an assistant city fiscal, in which the editorial in question was
set out and in which it was alleged that the same constituted a violation of article
256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the
municipal court and again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the prosecution had
rested, the defense moved for the dismissal of the case. On the subject of whether
or not article 256 of the Penal Code, under which the information was presented, is
in force, the trial judge, the Honorable George R. Harvey, said:
This antiquated provision was doubtless incorporated into the Penal Code of Spain
for the protection of the Ministers of the Crown and other representatives of the
King against free speech and action by Spanish subjects. A severe punishment was
prescribed because it was doubtless considered a much more serious offense to
insult the King's representative than to insult an ordinary individual. This provision,
with almost all the other articles of that Code, was extended to the Philippine
Islands when under the dominion of Spain because the King's subject in the
Philippines might defame, abuse or insult the Ministers of the Crown or other
representatives of His Majesty. We now have no Ministers of the Crown or other
persons in authority in the Philippines representing the King of Spain, and said
provision, with other articles of the Penal Code, had apparently passed into
"innocuous desuetude," but the Supreme Corut of the Philippine Islands has, by a
majority decision, held that said article 256 is the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon
this court until otherwise determined by proper authority.
In the decision rendered by the same judge, he concluded with the following
language:
In the United States such publications are usually not punishable as criminal
offense, and little importance is attached to them, because they are generally the
result of political controversy and are usually regarded as more or less colored or
exaggerated. Attacks of this character upon a legislative body are not punishable,
under the Libel Law. Although such publications are reprehensible, yet this court
feels some aversion to the application of the provision of law under which this case
was filed. Our Penal Code has come to us from the Spanish regime. Article 256 of
that Code prescribes punishment for persons who use insulting language about
Ministers of the Crown or other "authority." The King of Spain doubtless left the need
of such protection to his ministers and others in authority in the Philippines as well
as in Spain. Hence, the article referred to was made applicable here.
Notwithstanding the change of sovereignty, our Supreme Court, in a majority
decision, has held that this provision is still in force, and that one who made an
insulting remark about the President of the United States was punishable under it.
(U.S. vs.Helbig, supra.) If it applicable in that case, it would appear to be applicable
in this case. Hence, said article 256 must be enforced, without fear or favor, until it
shall be repealed or superseded by other legislation, or until the Supreme Court
shall otherwise determine.
In view of the foregoing considerations, the court finds the defendant guilty as
charged in the information and under article 256 of their Penal Code sentences him
to suffer two months and one day of arresto mayor and the accessory penalties
prescribed by law, and to pay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an
extensive brief, and eloquent oral argument made in his own behalf and by his
learned counsel, all reduce themselves to the pertinent and decisive question which
was announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to
follow the rule announced in the case of United States vs.Helbig (R. G. No. 14705, 1
not published). In that case, the accused was charged with having said, "To hell with
the President and his proclamations, or words to that effect," in violation of article
256 of the Penal Code. He was found guilty in a judgment rendered by the Court of
First Instance of Manila and again on appeal to the Supreme Court, with the writer of
the instant decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that article 256 of
the Spanish Penal Code is no longer in force. Subsequently, on a motion of
reconsideration, the court, being of the opinion that the Court of First Instance had
committed a prejudicial error in depriving the accused of his right to cross-examine
a principal witness, set aside the judgment affirming the judgment appealed from
and ordered the return of the record to the court of origin for the celebration of a
new trial. Whether such a trial was actually had, is not known, but at least, the
record in the Helbig case has never again been elevated to this court.
There may perchance exist some doubt as to the authority of the decision in the
Helbig case, in view of the circumstances above described. This much, however, is
certain: The facts of the Helbig case and the case before us, which we may term the
Perfecto case, are different, for in the first case there was an oral defamation, while
in the second there is a written defamation. Not only this, but a new point which,
under the facts, could not have been considered in the Helbig case, is, in the
Perfecto case, urged upon the court. And, finally, as is apparent to all, the appellate
court is not restrained, as was the trial court, by strict adherence to a former
decision. We much prefer to resolve the question before us unhindered by
references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same
result can be had. A majority of the court are of the opinion that the Philippine Libel
Law, Act No. 277, has had the effect of repealing so much of article 256 of the Penal
Code as relates to written defamation, abuse, or insult, and that under the
information and the facts, the defendant is neither guilty of a violation of article 256
of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the
accused should be acquitted for the reason that the facts alleged in the information
do not constitute a violation of article 156 of the Penal Code. Three members of the
court believe that article 256 was abrogated completely by the change from
Spanish to American sovereignty over the Philippines and is inconsistent with
democratic principles of government.
Without prejudice to the right of any member of the court to explain his position, we
will discuss the two main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal
Code. The Libel Law, Act No. 277, was enacted by the Philippine Commission

shortly after organization of this legislative body. Section 1 defines libel as a
"malicious defamation, expressed either in writing, printing, or by signs or pictures,
or the like, or public theatrical exhibitions, tending to blacken the memory of one
who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged
or natural deffects of one who is alive, and thereby expose him to public hatred,
contempt or ridicule." Section 13 provides that "All laws and parts of laws now in
force, so far as the same may be in conflict herewith, are hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict
therewith, and that the Libel Law abrogated certain portion of the Spanish Penal
Code, cannot be gainsaid. Title X of Book II of the Penal Code, covering the subjects
of calumny and insults, must have been particularly affected by the Libel Law.
Indeed, in the early case of Pardo de Taveravs. Garcia Valdez ([1902], 1. Phil., 468),
the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law
on the subject of calumniaand injuria." Recently, specific attention was given to the
effect of the Libel Law on the provisions of the Penal Code, dealing with calumny
and insults, and it was found that those provisions of the Penal Code on the subject
of calumny and insults in which the elements of writing an publicity entered, were
abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code,
as for instance article 256.
The facts here are that the editor of a newspaper published an article, naturally in
writing, which may have had the tendency to impeach the honesty, virtue, or
reputation of members of the Philippine Senate, thereby possibly exposing them to
public hatred, contempt, or ridicule, which is exactly libel, as defined by the Libel
Law. Sir J. F. Stephen is authority for the statement that a libel is indictable when
defaming a "body of persons definite and small enough for individual members to
be recognized as such, in or by means of anything capable of being a libel." (Digest
of Criminal Law, art. 267.) But in the United States, while it may be proper to
prosecute criminally the author of a libel charging a legislator with corruption,
criticisms, no matter how severe, on a legislature, are within the range of the liberty
of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law,
p. 2131.) With these facts and legal principles in mind, recall that article 256 begins:
Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the
Crown or other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The wellknown rule of statutory construction is, that where the later statute clearly covers
the old subject-matter of antecedent acts, and it plainly appears to have been the
purpose of the legislature to give expression in it to the whole law on the subject,
previous laws are held to be repealed by necessary implication. (1 Lewis' Sutherland
Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277
had the effect so much of this article as punishes defamation, abuse, or insults by
writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also
have affected article 256, but as to this point, it is not necessary to make a
pronouncement.
2. Effect of the change from Spanish to Amerciansevoreignty over the Philippine son
article 256 of the Spanish Penal Code. Appellant's main proposition in the lower
court and again energetically pressed in the appellate court was that article 256 of
the Spanish Penal Code is not now in force because abrogated by the change from
Spanish to American sovereignty over the Philippines and because inconsistent with
democratic principles of government. This view was indirectly favored by the trial
judge, and, as before stated, is the opinion of three members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title
I of Book II punishes the crimes of treason, crimes that endanger the peace or
independence of the state, crimes against international law, and the crime of piracy.
Title II of the same book punishes the crimes of lese majeste, crimes against the
Cortes and its members and against the council of ministers, crimes against the
form of government, and crimes committed on the occasion of the exercise of rights
guaranteed by the fundamental laws of the state, including crime against religion
and worship. Title III of the same Book, in which article 256 is found, punishes the
crimes of rebellion, sedition, assaults upon persons in authority, and their agents,
and contempts, insults, injurias, and threats against persons in authority, and
insults, injurias, and threats against their agents and other public officers, the last
being the title to Chapter V. The first two articles in Chapter V define and punish the
offense of contempt committed by any one who shall be word or deed defame,
abuse, insult, or threathen a minister of the crown, or any person in authority. The
with an article condemning challenges to fight duels intervening, comes article 256,
now being weighed in the balance. It reads as follows: "Any person who, by word,
deed, or writing, shall defame, abuse, or insult any Minister of the Crown or other
person in authority, while engaged in the performance of official duties, or by
reason of such performance, provided that the offensive minister or person, or the
offensive writing be not addressed to him, shall suffer the penalty of arresto mayor,"
that is, the defamation, abuse, or insult of anyMinister of the Crown of the
Monarchy of Spain (for there could not be a Minister of the Crown in the United
States of America), or other person in authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having
to do with such subjects as treason, lese majeste, religion and worship, rebellion,
sedition, and contempts of ministers of the crown, are not longer in force. Our
present task, therefore, is a determination of whether article 256 has met the same
fate, or, more specifically stated, whether it is in the nature of a municipal law or
political law, and is consistent with the Constitution and laws of the United States
and the characteristics and institutions of the American Government.
It is a general principle of the public law that on acquisition of territory the previous
political relations of the ceded region are totally abrogated. "Political" is here used
to denominate the laws regulating the relations sustained by the inhabitants to the
sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock

Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roavs. Collector of
Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court
stated the obvious when in the course of his opinion in the case of Chicago, Rock
Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all
laws, ordinances and regulations in conflict with the political character, institutions
and Constitution of the new government are at once displaced. Thus, upon a
cession of political jurisdiction and legislative power and the latter is involved in
the former to the United States, the laws of the country in support of an
established religion or abridging the freedom of the press, or authorizing cruel and
unusual punishments, and he like, would at once cease to be of obligatory force
without any declaration to that effect." To quote again from the United States
Supreme Court: "It cannot be admitted that the King of Spain could, by treaty or
otherwise, impart to the United States any of his royal prerogatives; and much less
can it be admitted that they have capacity to receive or power to exercise them.
Every nation acquiring territory, by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government, and not according to those of the
government ceding it." (Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the
Military Commander dated May 28, 1898, and by proclamation of the latter, the
municipal laws of the conquered territory affecting private rights of person and
property and providing for the punishment of crime were nominally continued in
force in so far as they were compatible with the new order of things. But President
McKinley, in his instructions to General Merritt, was careful to say: "The first effect of
the military occupation of the enemy's territory is the severance of the former
political relation of the inhabitants and the establishment of a new political power."
From that day to this, the ordinarily it has been taken for granted that the provisions
under consideration were still effective. To paraphrase the language of the United
States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there
was not and could not be, except as precise questions were presented, a careful
consideration of the codal provisions and a determination of the extent to which
they accorded with or were repugnant to the "'great principles of liberty and law'
which had been 'made the basis of our governmental system.' " But when the
question has been squarely raised, the appellate court has been forced on occasion
to hold certain portions of the Spanish codes repugnant t democratic institutions
and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S.
vs.Balcorta [1913], 25 Phil., 273; U.S. vs.Balcorta [1913], 25 Phil., 533; Weems vs.
U.S., supra.)
The nature of the government which has been set up in the Philippines under
American sovereignty was outlined by President McKinley in that Magna Charta of
Philippine liberty, his instructions to the Commission, of April 7, 1900. In part, the
President said:
In all the forms of government and administrative provisions which they are
authorized to prescribe, the Commission should bear in mind that he government
which they are establishing is designed not for our satisfaction or for the expression
of our theoretical views, but for the happiness, peace, and prosperity of the people

of the Philippine Islands, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent
consistent with the accomplishment of the indispensable requisites of just and
effective government. At the same time the Commission should bear in mind, and
the people of the Islands should be made plainly to understand, that there are
certain great principles of government which have been made the basis of our
governmental system, which we deem essential to the rule of law and the
maintenance of individual freedom, and of which they have, unfortunately, been
denied the experience possessed by us; that there are also certain practical rules of
government which we have found to be essential to the preservation of these great
principles of liberty and law, and that these principles and these rules of
government must be established and maintained in their islands for the sake of
their liberty and happiness, however much they may conflict with the customs or
laws of procedure with which they are familiar. It is evident that the most
enligthened thought of the Philippine Islands fully appreciates the importance of
these principles and rules, and they will inevitably within a short time command
universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our
Supreme Court, in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The
President and Congress framed the government on the model with which American
are familiar, and which has proven best adapted for the advancement of the public
interests and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that
the happiness, peace, and prosperity of the people of the Philippine Islands and
their customs, habits, and prejudices, to follow the language of President McKinley,
demand obeisance to authority, and royal protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the
Government of Spain to protect Spanish officials who were the representatives of
the King. With the change of sovereignty, a new government, and a new theory of
government, as set up in the Philippines. It was in no sense a continuation of the
old, although merely for convenience certain of the existing institutions and laws
were continued. The demands which the new government made, and makes, on the
individual citizen are likewise different. No longer is there a Minister of the Crown or
a person in authority of such exalted position that the citizen must speak of him
only with bated breath. "In the eye of our Constitution and laws, every man is a
sovereign, a ruler and a freeman, and has equal rights with every other man. We
have no rank or station, except that of respectability and intelligence as opposed to
indecency and ignorance, and the door to this rank stands open to every man to
freely enter and abide therein, if he is qualified, and whether he is qualified or not
depends upon the life and character and attainments and conduct of each person
for himself. Every man may lawfully do what he will, so long as it is not malum in se
or malumprohibitumor does not infringe upon the qually sacred rights of others."
(State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the
United States are derived, there were once statutes of scandalummagnatum, under
which words which would not be actionable if spoken of an ordinary subject were
made actionable if spoken of a peer of the realm or of any of the great officers of
the Crown, without proof of any special damage. The Crown of England,
unfortunately, took a view less tolerant that that of other sovereigns, as for
instance, the Emperors Augustus, Caesar, and Tiberius. These English statutes
have, however, long since, become obsolete, while in the United States, the offense
of scandalummagnatumis not known. In the early days of the American Republic, a
sedition law was enacted, making it an offense to libel the Government, the
Congress, or the President of the United States, but the law met with so much
popular disapproval, that it was soon repealed. "In this country no distinction as to
persons is recognized, and in practice a person holding a high office is regarded as
a target at whom any person may let fly his poisonous words. High official position,
instead of affording immunity from slanderous and libelous charges, seems rather to
be regarded as making his character free plunder for any one who desires to create
a senation by attacking it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs.
Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and fundamental principles of
the American character and system of government. The gulf which separates this
article from the spirit which inspires all penal legislation of American origin, is as
wide as that which separates a monarchy from a democratic Republic like that of
the United States. This article was crowded out by implication as soon as the United
States established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted monarchical
conception of the nature of political authority, as opposed to the American
conception of the protection of the interests of the public, have been obliterated by
the present system of government in the Islands. 1awph!l.net
From an entirely different point of view, it must be noted that this article punishes
contempts against executive officials, although its terms are broad enough to cover
the entire official class. Punishment for contempt of non-judicial officers has no
place in a government based upon American principles. Our official class is not, as
in monarchies, an agent of some authority greater than the people but it is an agent
and servant of the people themselves. These officials are only entitled to respect
and obedience when they are acting within the scope of their authority and
jurisdiction. The American system of government is calculated to enforce respect
and obedience where such respect and obedience is due, but never does it place
around the individual who happens to occupy an official position by mandate of the
people any official halo, which calls for drastic punishment for contemptuous
remarks.
The crime of lese majestedisappeared in the Philippines with the ratification of the
Treaty of Paris. Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion,
although for different reasons, that the judgment should be reversed and the
defendant and appellant acquitted, with costs de officio. So ordered.
2. MACARIOLA V ASUNCION
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte,
respondent.

MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged
respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now
Associate Justice of the Court of Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then
Associate Justice Cecilia Muoz Palma of the Court of Appeals now retired Associate
Justice of the Supreme Court, to whom this case was referred on October 28, 1968
for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for
partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita
R. Macariola, defendant, concerning the properties left by the deceased
Francisco Reyes, the common father of the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased
Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of Francisco Reyes with
FelisaEspiras, and the remaining plaintiffs who were the children of the deceased by
his second marriage with Irene Ondez; c) the properties left by the deceased were
all the conjugal properties of the latter and his first wife, FelisaEspiras, and no
properties were acquired by the deceased during his second marriage; d) if there
was any partition to be made, those conjugal properties should first be partitioned
into two parts, and one part is to be adjudicated solely to defendant it being the
share of the latter's deceased mother, FelisaEspiras, and the other half which is the
share of the deceased Francisco Reyes was to be divided equally among his children
by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil
Case 3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a
preponderance of evidence, finds and so holds, and hereby renders
judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only
children legitimated by the subsequent marriage of Francisco Reyes
Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to
have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring
Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot
1145 as belonging to the conjugal partnership of the spouses Francisco
Reyes Diaz and FelisaEspiras; (4) Declaring Lot No. 2304 and 1/4 of Lot
No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184
as belonging exclusively to the deceased Francisco Reyes Diaz; (6)
Declaring the defendant Bernardita R. Macariola, being the only legal
and forced heir of her mother FelisaEspiras, as the exclusive owner of

one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth
(1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes
Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half
(1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No.
3416; the remaining one-half (1/2) of Lot 2304 and the remaining onehalf (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate
of Francisco Reyes Diaz; (8) Directing the division or partition of the
estate of Francisco Reyes Diaz in such a manner as to give or grant to
Irene Ondez, as surviving widow of Francisco Reyes Diaz, a hereditary
share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz
(Art. 996 in relation to Art. 892, par 2, New Civil Code), and the
remaining portion of the estate to be divided among the plaintiffs
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes,
Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in
such a way that the extent of the total share of plaintiff Sinforosa R.
Bales in the hereditary estate shall not exceed the equivalent of twofifth (2/5) of the total share of any or each of the other plaintiffs and
the defendant (Art. 983, New Civil Code), each of the latter to receive
equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil.
528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the
parties, within thirty days after this judgment shall have become final
to submit to this court, for approval a project of partition of the
hereditary estate in the proportion above indicated, and in such
manner as the parties may, by agreement, deemed convenient and
equitable to them taking into consideration the location, kind, quality,
nature and value of the properties involved; (10) Directing the plaintiff
Sinforosa R. Bales and defendant Bernardita R. Macariola to pay the
costs of this suit, in the proportion of one-third (1/3) by the first named
and two-thirds (2/3) by the second named; and (I 1) Dismissing all
other claims of the parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and on October
16, 1963, a project of partition was submitted to Judge Asuncion which is marked
Exh. A. Notwithstanding the fact that the project of partition was not signed by the
parties themselves but only by the respective counsel of plaintiffs and defendant,
Judge Asuncion approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to this Court
for approval the following project of partition:
COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this
Honorable Court respectfully submit the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita
Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western
part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares,
provided, however that the remaining portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition indicated above
which is made in accordance with the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to have signed this
Project of Partition, nevertheless, upon assurance of both counsels of the respective
parties to this Court that the Project of Partition, as above- quoted, had been made
after a conference and agreement of the plaintiffs and the defendant approving the
above Project of Partition, and that both lawyers had represented to the Court that
they are given full authority to sign by themselves the Project of Partition, the Court,
therefore, finding the above-quoted Project of Partition to be in accordance with law,
hereby approves the same. The parties, therefore, are directed to execute such
papers, documents or instrument sufficient in form and substance for the vesting of
the rights, interests and participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery of the respective
properties adjudicated to each one in view of said Project of Partition, and to
perform such other acts as are legal and necessary to effectuate the said Project of
Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only
for the purpose of giving authority to the Register of Deeds of the Province of Leyte

to issue the corresponding transfer certificates of title to the respective adjudicatees
in conformity with the project of partition (see Exh. U).
One of the properties mentioned in the project of partition was Lot 1184 or rather
one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to
the decision was the exclusive property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the plaintiffs Luz, AnacoritaRuperto, Adela,
and Priscilla all surnamed Reyes in equal shares, and when the project of partition
was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided
into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's
court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. ArcadioGalapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban
(Exh. 12).
On March 6, 1965, Dr. ArcadioGalapon and his wife Sold a portion of Lot 1184-E with
an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S.
Asuncion (Exh. 11), which particular portion was declared by the latter for taxation
purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of
the corporation were DominadorArigpa Tan, HumiliaJalandoni Tan, Jaime Arigpa Tan,
Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as
the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of
Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we
shall henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint
dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent
Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article
14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule
XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by
associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a
stockholder and a ranking officer while he was a judge of the Court of First Instance
of Leyte; [3] that respondent was guilty of coddling an impostor and acted in
disregard of judicial decorum by closely fraternizing with a certain DominadorArigpa
Tan who openly and publicly advertised himself as a practising attorney when in
truth and in fact his name does not appear in the Rolls of Attorneys and is not a
member of the Philippine Bar; and [4] that there was a culpable defiance of the law
and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a
reply was filed on October 16, 1968 by herein complainant. In Our resolution of
October 28, 1968, We referred this case to then Justice Cecilia Muoz Palma of the
Court of Appeals, for investigation, report and recommendation. After hearing, the
said Investigating Justice submitted her report dated May 27, 1971 recommending
that respondent Judge should be reprimanded or warned in connection with the first
cause of action alleged in the complaint, and for the second cause of action,
respondent should be warned in case of a finding that he is prohibited under the law
to engage in business. On the third and fourth causes of action, Justice Palma
recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477,
rec.), complainant herein instituted an action before the Court of First Instance of
Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al.,
defendants," which was docketed as Civil Case No. 4235, seeking the annulment of
the project of partition made pursuant to the decision in Civil Case No. 3010 and the
two orders issued by respondent Judge approving the same, as well as the partition
of the estate and the subsequent conveyances with damages. It appears, however,
that some defendants were dropped from the civil case. For one, the case against
Dr. ArcadioGalapon was dismissed because he was no longer a real party in interest
when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a
portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder
was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case
against defendant Victoria Asuncion was dismissed on the ground that she was no
longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed
as the portion of Lot 1184 acquired by her and respondent Judge from Dr.
ArcadioGalapon was already sold on August 31, 1966 to the Traders Manufacturing
and Fishing industries, Inc. Likewise, the cases against defendants Serafin P.
Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and
Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and
Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete
were dismissed with the conformity of complainant herein, plaintiff therein, and her
counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of
Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now
Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear
and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which
reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the Project
of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the
partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for
moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary
damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.
B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND
FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN
(1) Dismissing the complaint against the defendants MariquitaVillasin and the heirs
of the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants MariquitaVillasin and the heirs of
Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET
AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010
(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
(1) Dismissing the complaint against BonifacioRamo;
(2) Directing the plaintiff to pay the defendant BonifacioRamo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the
Court of Appeals upon perfection of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R.
Macariola, under her first cause of action, that respondent Judge Elias B. Asuncion
violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a
portion of Lot No. 1184-E which was one of those properties involved in Civil Case
No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a
public or judicial action, either in person or through the mediation of another:
xxx xxxxxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the court within

whose jurisdiction or territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any litigation in
which they may take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE
have already ruled that "... for the prohibition to operate, the sale or assignment of
the property must take place during the pendency of the litigation involving the
property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario
vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a
portion of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June
8, 1963 was already final because none of the parties therein filed an appeal within
the reglementary period; hence, the lot in question was no longer subject of the
litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order
dated October 23, 1963 and the amended order datedNovember 11, 1963
approving the October 16, 1963 project of partition made pursuant to the June 8,
1963 decision, had long become final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965
directly from the plaintiffs in Civil Case No. 3010 but from Dr. ArcadioGalapon who
earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely,
Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in
Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half
thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz
Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the
same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As
aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was
issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6,
1965 he sold a portion of said lot to respondent Judge and his wife who declared the
same for taxation purposes only. The subsequent sale on August 31, 1966 by
spouses Asuncion and spouses Galapon of their respective shares and interest in
said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which
respondent was the president and his wife was the secretary, took place long after
the finality of the decision in Civil Case No. 3010 and of the subsequent two
aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968
an action before the Court of First Instance of Leyte docketed as Civil Case No.
4234, seeking to annul the project of partition and the two orders approving the
same, as well as the partition of the estate and the subsequent conveyances, the
same, however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot
1184-E from Dr. ArcadioGalapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders

dated October 23, 1963 and November 11, 1963. Therefore, the property was no
longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no
longer alter, change or affect the aforesaid facts that the questioned sale to
respondent Judge, now Court of Appeals Justice, was effected and consummated
long after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken
place over one year after the finality of the decision in Civil Case No. 3010 as well as
the two orders approving the project of partition, and not during the pendency of
the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil
Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E
to Dr. ArcadioGalapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only
a mere scheme to conceal the illegal and unethical transfer of said lot to respondent
Judge as a consideration for the approval of the project of partition. In this
connection, We agree with the findings of the Investigating Justice thus:
And so we are now confronted with this all-important question whether or not
the acquisition by respondent of a portion of Lot 1184-E and the subsequent
transfer of the whole lot to "TRADERS" of which respondent was the President
and his wife the Secretary, was intimately related to the Order of respondent
approving the project of partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions
between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).
xxx xxxxxx
On this point, I agree with respondent that there is no evidence in the record
showing that Dr. ArcadioGalapon acted as a mere "dummy" of respondent in
acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as
a respectable citizen, credible and sincere, and I believe him when he testified that
he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses
without any intervention of, or previous understanding with Judge Asuncion (pp.
391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in
approving the project of partition although it was not signed by the parties, We
quote with approval the findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the
signature of the parties more particularly that of Mrs. Macariola on the project
of partition submitted to him for approval; however, whatever error was
committed by respondent in that respect was done in good faith as according

to Judge Asuncion he was assured by Atty. BonifacioRamo, the counsel of
record of Mrs. Macariola, That he was authorized by his client to submit said
project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is
true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the
statement of respondent, his affidavit being the only one that was presented
as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this
investigator to believe that she knew the contents of the project of partition,
Exh. A, and that she gave her conformity thereto. I refer to the following
documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9a). On tills certificate of title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly entered and registered on November 26,
1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes
MacariolaonOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth share
of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated
that she was the absolute owner of said one-fourth share, the same having been
adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as
per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A).
The deed of sale was duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that in the
project of partition dated October 16, 1963, which was approved by respondent on
October 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154
or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot
1154 which complainant sold to Dr. Decena on October 22, 1963, several days after
the preparation of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her onefourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because
of the project of partition, Exh. A. Such contention is absurd because from the
decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the
estate of Francisco Reyes Diaz while the other half of said one-fourth was the share
of complainant's mother, FelisaEspiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot
1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola
sold Lot 1154 on October 22, 1963, it was for no other reason than that she was
wen aware of the distribution of the properties of her deceased father as per Exhs. A
and B. It is also significant at this point to state that Mrs. Macariola admitted during
the cross-examination that she went to Tacloban City in connection with the sale of
Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce

that she could not have been kept ignorant of the proceedings in civil case 3010
relative to the project of partition.
Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove
the alleged gross inequalities in the choice and distribution of the real properties
when she could have easily done so by presenting evidence on the area, location,
kind, the assessed and market value of said properties. Without such evidence there
is nothing in the record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article
1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which
was in litigation in his court, it was, however, improper for him to have acquired the
same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which
requires that: "A judge's official conduct should be free from the appearance of
impropriety, and his personal behavior, not only upon the bench and in the
performance of judicial duties, but also in his everyday life, should be beyond
reproach." And as aptly observed by the Investigating Justice: "... it was unwise and
indiscreet on the part of respondent to have purchased or acquired a portion of a
piece of property that was or had been in litigation in his court and caused it to be
transferred to a corporation of which he and his wife were ranking officers at the
time of such transfer. One who occupies an exalted position in the judiciary has the
duty and responsibility of maintaining the faith and trust of the citizenry in the
courts of justice, so that not only must he be truly honest and just, but his
actuations must be such as not give cause for doubt and mistrust in the uprightness
of his administration of justice. In this particular case of respondent, he cannot deny
that the transactions over Lot 1184-E are damaging and render his actuations open
to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was
no longer in litigation in his court and that he was purchasing it from a third person
and not from the parties to the litigation, he should nonetheless have refrained from
buying it for himself and transferring it to a corporation in which he and his wife
were financially involved, to avoid possible suspicion that his acquisition was related
in one way or another to his official actuations in civil case 3010. The conduct of
respondent gave cause for the litigants in civil case 3010, the lawyers practising in
his court, and the public in general to doubt the honesty and fairness of his
actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that
respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce
when he associated himself with the Traders Manufacturing and Fishing Industries,
Inc. as a stockholder and a ranking officer, said corporation having been organized
to engage in business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by
proxy, nor can they hold any office or have any direct, administrative, or

financial intervention in commercial or industrial companies within the limits
of the districts, provinces, or towns in which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance
are temporarily discharging the functions of judge or prosecuting attorney.
xxx xxxxxx
5. Those who by virtue of laws or special provisions may not engage in commerce in
a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in
the Code of Commerce which is part of the commercial laws of the Philippines, it,
however, partakes of the nature of a political law as it regulates the relationship
between the government and certain public officers and employees, like justices
and judges.
Political Law has been defined as that branch of public law which deals with the
organization and operation of the governmental organs of the State and define the
relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil.
887, 897 [1922]). It may be recalled that political law embraces constitutional law,
law of public corporations, administrative law including the law on public officers
and elections. Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain public
officers and employees with respect to engaging in business: hence, political in
essence.
It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Commission de
Codificacion de las Provincias de Ultramar," which was extended to the Philippines
by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on
December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from
the United States to the Republic of the Philippines, Article 14 of this Code of
Commerce must be deemed to have been abrogated because where there is
change of sovereignty, the political laws of the former sovereign, whether
compatible or not with those of the new sovereign, are automatically abrogated,
unless they are expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to
another, either following a conquest or otherwise, ... those laws which are
political in their nature and pertain to the prerogatives of the former
government immediately cease upon the transfer of sovereignty. (Opinion,
Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of
the new sovereign continue in force without the express assent or affirmative act of
the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14).
However, such political laws of the prior sovereignty as are not in conflict with the
constitution or institutions of the new sovereign, may be continued in force if the
conqueror shall so declare by affirmative act of the commander-in-chief during the
war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171
U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales
of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that
the relations of the inhabitants with each other undergo any change.
Their relations with their former sovereign are dissolved, and new
relations are created between them and the government which has
acquired their territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals,
remains in force, until altered by the newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It
is a general principle of the public law that on acquisition of territory the previous
political relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the
aforestated provision of the Code of Commerce after the change of sovereignty from
Spain to the United States and then to the Republic of the Philippines.
Consequently, Article 14 of the Code of Commerce has no legal and binding effect
and cannot apply to the respondent, then Judge of the Court of First Instance, now
Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H,
Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
be unlawful:
xxx xxxxxx
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any Iaw from having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because
there is no showing that respondent participated or intervened in his official
capacity in the business or transactions of the Traders Manufacturing and Fishing

Industries, Inc. In the case at bar, the business of the corporation in which
respondent participated has obviously no relation or connection with his judicial
office. The business of said corporation is not that kind where respondent intervenes
or takes part in his capacity as Judge of the Court of First Instance. As was held in
one case involving the application of Article 216 of the Revised Penal Code which
has a similar prohibition on public officers against directly or indirectly becoming
interested in any contract or business in which it is his official duty to intervene, "(I)t
is not enough to be a public official to be subject to this crime; it is necessary that
by reason of his office, he has to intervene in said contracts or transactions; and,
hence, the official who intervenes in contracts or transactions which have no
relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G.
11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol.
11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any
undue advantage in its business operations by reason of respondent's financial
involvement in it, or that the corporation benefited in one way or another in any
case filed by or against it in court. It is undisputed that there was no case filed in
the different branches of the Court of First Instance of Leyte in which the
corporation was either party plaintiff or defendant except Civil Case No. 4234
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein
the complainant herein sought to recover Lot 1184-E from the aforesaid corporation.
It must be noted, however, that Civil Case No. 4234 was filed only on November 9 or
11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when
respondent Judge was no longer connected with the corporation, having disposed of
his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no
provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an
existing law expressly prohibiting members of the Judiciary from engaging or having
interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the
Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of
fact, under Section 77 of said law, municipal judges may engage in teaching or
other vocation not involving the practice of law after office hours but with the
permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging
in commerce is, as heretofore stated, deemed abrogated automatically upon the
transfer of sovereignty from Spain to America, because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against
the purchase by judges of a property in litigation before the court within whose
jurisdiction they perform their duties, cannot apply to respondent Judge because the
sale of the lot in question to him took place after the finality of his decision in Civil
Case No. 3010 as well as his two orders approving the project of partition; hence,
the property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant
to the Civil Service Act of 1959 prohibits an officer or employee in the civil service
from engaging in any private business, vocation, or profession or be connected with
any commercial, credit, agricultural or industrial undertaking without a written
permission from the head of department, the same, however, may not fall within
the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act
because the last portion of said paragraph speaks of a prohibition by the
Constitution or law on any public officer from having any interest in any business
and not by a mere administrative rule or regulation. Thus, a violation of the
aforesaid rule by any officer or employee in the civil service, that is, engaging in
private business without a written permission from the Department Head may not
constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule
XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No.
2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of
Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No
officer or employee shall engage directly in any private business, vocation, or
profession or be connected with any commercial, credit, agricultural or industrial
undertaking without a written permission from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of the
Judiciary, is covered by Republic Act No. 296, as amended, otherwise known as the
Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then
vested in the President of the Philippines, not in the Commissioner of Civil Service,
and only on two grounds, namely, serious misconduct and inefficiency, and upon
the recommendation of the Supreme Court, which alone is authorized, upon its own
motion, or upon information of the Secretary (now Minister) of Justice to conduct the
corresponding investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme
Court can discipline judges of inferior courts as well as other personnel of the
Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner
may, for ... violation of the existing Civil Service Law and rules or of reasonable
office regulations, or in the interest of the service, remove any subordinate officer or
employee from the service, demote him in rank, suspend him for not more than one
year without pay or fine him in an amount not exceeding six months' salary." Thus,
a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil
service officers and employees.
However, judges cannot be considered as subordinate civil service officers or
employees subject to the disciplinary authority of the Commissioner of Civil Service;
for, certainly, the Commissioner is not the head of the Judicial Department to which
they belong. The Revised Administrative Code (Section 89) and the Civil Service Law

itself state that the Chief Justice is the department head of the Supreme Court (Sec.
20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only
other or second branch of the government (Sec. 1, Art. X, 1973 Constitution).
Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for
disciplinary action against judges because to recognize the same as applicable to
them, would be adding another ground for the discipline of judges and, as
aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their
removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the
Commissioner of Civil Service who has original and exclusive jurisdiction "(T)o
decide, within one hundred twenty days, after submission to it, all administrative
cases against permanent officers and employees in the competitive service, and,
except as provided by law, to have final authority to pass upon their removal,
separation, and suspension and upon all matters relating to the conduct, discipline,
and efficiency of such officers and employees; and prescribe standards, guidelines
and regulations governing the administration of discipline" (emphasis supplied).
There is no question that a judge belong to the non-competitive or unclassified
service of the government as a Presidential appointee and is therefore not covered
by the aforesaid provision. WE have already ruled that "... in interpreting Section
16(i) of Republic Act No. 2260, we emphasized that only permanent officers and
employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in private business by
joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a
ranking officer, is not violative of the provissions of Article 14 of the Code of
Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as
Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil
Service Act of 1959, the impropriety of the same is clearly unquestionable because
Canon 25 of the Canons of Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises
which are apt to be involved in litigation in his court; and, after his accession
to the bench, he should not retain such investments previously made, longer
than a period sufficient to enable him to dispose of them without serious loss.
It is desirable that he should, so far as reasonably possible, refrain from all
relations which would normally tend to arouse the suspicion that such
relations warp or bias his judgment, or prevent his impartial attitude of mind
in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their
respective shares to third parties, and it appears also that the aforesaid corporation
did not in anyway benefit in any case filed by or against it in court as there was no
case filed in the different branches of the Court of First Instance of Leyte from the
time of the drafting of the Articles of Incorporation of the corporation on March 12,

1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of
respondent on January 31, 1967 from said corporation. Such disposal or sale by
respondent and his wife of their shares in the corporation only 22 days after the
incorporation of the corporation, indicates that respondent realized that early that
their interest in the corporation contravenes the aforesaid Canon 25. Respondent
Judge and his wife therefore deserve the commendation for their immediate
withdrawal from the firm after its incorporation and before it became involved in
any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that
respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum, and that there was culpable defiance of the law and utter disregard for
ethics. WE agree, however, with the recommendation of the Investigating Justice
that respondent Judge be exonerated because the aforesaid causes of action are
groundless, and WE quote the pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with DominadorArigpa Tan who openly and
publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J)
when in truth and in fact said DominadorArigpa Tan does not appear in the
Roll of Attorneys and is not a member of the Philippine Bar as certified to in
Exh. K.
The "respondent denies knowing that DominadorArigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the
bar. I see no reason for disbelieving this assertion of respondent. It has been shown
by complainant that DominadorArigpa Tan represented himself publicly as an
attorney-at-law to the extent of putting up a signboard with his name and the words
"Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for
respondent and any person for that matter to have accepted that statement on its
face value. "Now with respect to the allegation of complainant that respondent is
guilty of fraternizing with DominadorArigpa Tan to the extent of permitting his wife
to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true
did not render respondent guilty of violating any canon of judicial ethics as long as
his friendly relations with Dominador A. Tan and family did not influence his official
actuations as a judge where said persons were concerned. There is no tangible
convincing proof that herein respondent gave any undue privileges in his court to
DominadorArigpa Tan or that the latter benefitted in his practice of law from his
personal relations with respondent, or that he used his influence, if he had any, on
the Judges of the other branches of the Court to favor said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain as much as
possible from maintaining close friendly relations with practising attorneys and
litigants in his court so as to avoid suspicion 'that his social or business relations or
friendship constitute an element in determining his judicial course" (par. 30, Canons
of Judicial Ethics), but if a Judge does have social relations, that in itself would not
constitute a ground for disciplinary action unless it be clearly shown that his social

relations be clouded his official actuations with bias and partiality in favor of his
friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court
of Appeals, did not violate any law in acquiring by purchase a parcel of land which
was in litigation in his court and in engaging in business by joining a private
corporation during his incumbency as judge of the Court of First Instance of Leyte,
he should be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be characterized
with propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS
HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS
ACTIVITIES.SO ORDERED.
3. MANILA PRINCE HOTEL V GSIS

[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner,vs. GOVERNMENT SERVICE INSURANCE
SYSTEM,
MANILA
HOTEL
CORPORATION,
COMMITTEE
ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino 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 invoked 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 RenongBerhad, a Malaysian
firm, with ITT-Sheraton as its hotel operator, which bid for the same number of
shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or
other type of contract specified by the Highest Bidder in its strategic plan for the
Manila Hotel x xxx
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with
GSIS x xxx
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23,
1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/
OGCC (Office of the Government Corporate Counsel) are obtained. [3]
Pending the declaration of RenongBerhard as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per

share tendered by RenongBerhad. [4] In a subsequent letter dated 10 October 1995
petitioner sent a managers check issued by Philtrust Bank for Thirty-three Million
Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. RenongBerhad x xxx[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with RenongBerhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995
the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc
after it was referred to it by the First Division. The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas,
S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the Filipino
nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence
and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.[6] Petitioner
also argues that since 51% of the shares of the MHC carries with it the ownership of
the business of the hotel which is owned by respondent GSIS, a government-owned
and controlled corporation, the hotel business of respondent GSIS being a part of
the tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly covered by
the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot
be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share. [8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of
the 1987 Constitution is merely a statement of principle and policy since it is not a
self-executing provision and requires implementing legislation(s) x xxx 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 patrimony of 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 RenongBerhad could
still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should
fail since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as petitioner has
no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. [10] It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. [11] Under
the doctrine of constitutional supremacy, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by
the executive branch or entered into by private persons for private purposes is null

and void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in
every statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry out the
purposes of the framers who merely establish an outline of government providing
for the different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. [12] A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the
legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive codes
of laws intended to operate directly upon the people in a manner similar to that of
statutory enactments, and the function of constitutional conventions has evolved
into one more like that of a legislative body. Hence, unless it is expressly provided
that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law.[14] This can be cataclysmic. That is why the
prevailing view is, as it has always been, that x xxx in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing x xxx Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking body,
which could make them entirely meaningless by simply refusing to pass the needed
implementing statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of
the Committee on Style. If the wording of PREFERENCE is given to
QUALIFIED FILIPINOS, can it be understood as a preference to qualified
Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove
the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against
whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay
down conditions under which business may be done. For example,
qualifications on capital, qualifications on the setting up of other financial
structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not
to make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without impairing the selfexecuting nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the constitution,
further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights secured
or the determination thereof, or place reasonable safeguards around the exercise of
the right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule
is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
[17]
Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing. [18] The argument is flawed.
If the first and third paragraphs are not self-executing because Congress is still to
enact measures to encourage the formation and operation of enterprises fully
owned by Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its language require any
legislation in order to give preference to qualified Filipinos in the grant of rights,

privileges and concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and non-self-executing in
another.[19]
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are basically not
self-executing and only placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights - are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation [20] speaks of constitutional provisions on
personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in nationbuilding,[23] the promotion of social justice,[24] and the values of education.
[25]
Tolentino v. Secretary of Finance [26] refers to constitutional provisions on social
justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc. v. Morato[29]
cites provisions on the promotion of general welfare, [30] the sanctity of family life,[31]
the vital role of the youth in nation-building [32] and the promotion of total human
liberation and development.[33] A reading of these provisions indeed clearly shows
that they are not judicially enforceable constitutional rights but merely guidelines
for legislation. The very terms of the provisions manifest that they are only
principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that - qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if there
is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibiremedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains The patrimony of the Nation that should be conserved and developed
refers not only to our rich natural resources but also to the cultural heritage
of our race. It also refers to our intelligence in arts, sciences and
letters.Therefore, we should develop not only our lands, forests, mines and
other natural resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage.[35] When the Constitution speaks of national patrimony, it refers not only to
the natural resources of the Philippines, as the Constitution could have very well
used the term natural resources, but also to the cultural heritage of the Filipinos.

Manila Hotel has become a landmark - a living testimonial of Philippine heritage.
While it was restrictively an American hotel when it first opened in 1912, it
immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930s. It was the site of
the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government it plays host to dignitaries
and official visitors who are accorded the traditional Philippine hospitality. [36]
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City.[37] During World War II the hotel was converted by the
Japanese Military Administration into a military headquarters. When the American
forces returned to recapture Manila the hotel was selected by the Japanese together
with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950s
and 1960s, 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 detat where 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 the Filipino First Policy
provision is not applicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the Hotel building nor the land upon which the
building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by Filipinos.
This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING
STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
x xxx

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we
have to raise a question. Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
x xxx
MR. RODRIGO. Before we vote, may I request that the amendment be read
again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word
Filipinos here, as intended by the proponents, will include not only individual
Filipinos but also Filipino-controlled entities or entities fully-controlled by
Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to
please restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified
and a Filipino enterprise is also qualified, will the Filipino enterprise still be
given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]

Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the
so-called Filipino First policy. That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the
national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner Nolledo [43]
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy x xxx This provision was
never found in previous Constitutions x xxx
The term qualified Filipinos simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent
or inefficient, since such an indiscriminate preference would be counterproductive
and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has
to be made between a qualified foreigner and a qualified Filipino, the latter shall be
chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference
here is that petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in another
hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing legislation
is quite disturbing. The attempt to violate a clear constitutional provision - by the
government itself - is only too distressing. To adopt such a line of reasoning is to
renounce the duty to ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact
further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt The executive department has a constitutional duty to implement laws, including
the Constitution, even before Congress acts - provided that there are discoverable
legal standards for executive action. When the executive acts, it must be guided by

its own understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by
a constitutional command. That is not how constitutional government operates. [45]
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
personality. This argument again is at best specious. It is undisputed that the sale of
51% of the MHC could only be carried out with the prior approval of the State acting
through respondent Committee on Privatization. As correctly pointed out by Fr.
Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents
GSIS and MHC a state action. In constitutional jurisprudence, the acts of persons
distinct from the government are consideredstate 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 [i]f for any reasonthe 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 strongerreason than the
constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood to
be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person therefore
desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning
the sale to RenongBerhad since petitioner was well aware from the beginning that a
foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and
foreigners alike were invited to the bidding. But foreigners may be awarded the sale
only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid
tendered by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional mandate,
petitioner had not yet matched the bid offered by RenongBerhad. Thus it did not
have the right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgment, regardless of the

consequences to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by RenongBerhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in
the 1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as the ultimate guardian
of the Constitution will never shun, under any reasonable circumstance, the duty of
upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages
and welcomes more business opportunities but avowedly sanctions the preference
for Filipinos whenever such preference is ordained by the Constitution. The position
of the Court on this matter could have not been more appropriately articulated by
Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic progress and
development x xxx in connection with a temporary injunction issued by the Courts
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 that
injunction again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-informed criticism. [48]
Privatization of a business asset for purposes of enhancing its business viability
and preventing further losses, regardless of the character of the asset, should not
take precedence over non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national pride and dignity. For the
Constitution enshrines higher and nobler non-material values. Indeed, the Court will
always defer to the Constitution in the proper governance of a free society; after all,

there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. [49]
Nationalism is inherent in the very concept of the Philippines being a democratic
and republican state, with sovereignty residing in the Filipino people and from whom
all government authority emanates. In nationalism, the happiness and welfare of
the people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic
concept.Protection of foreign investments, while laudible, is merely a policy. It
cannot override the demands of nationalism. [50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity
to be sold to the highest bidder solely for the sake of privatization. We are not
talking about an ordinary piece of property in a commercial district. We are talking
about a historic relic that has hosted many of the most important events in the
short history of the Philippines as a nation. We are talking about a hotel where
heads of states would prefer to be housed as a strong manifestation of their desire
to cloak the dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a significant role
as an authentic repository of twentieth century Philippine history and culture. In this
sense, it has become truly a reflection of the Filipino soul - a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a
country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino
psyche to alien hands cannot be less than mephistophelian for it is, in whatever
manner viewed, a veritable alienation of a nations soul for some pieces of foreign
silver. And so we ask: What advantage, which cannot be equally drawn from a
qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it
stands for - is sold to a non-Filipino? How much of national pride will vanish if the
nations cultural heritage is entrusted to a foreign entity? On the other hand, how
much dignity will be preserved and realized if the national patrimony is safekept in
the hands of a qualified, zealous and well-meaning Filipino? This is the plain and
simple meaning of the Filipino First Policy provision of the Philippine Constitution.
And this Court, heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and protect the
sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00
per share and thereafter to execute the necessary agreements and documents to

effect the sale, to issue the necessary clearances and to do such other acts and
deeds as may be necessary for the purpose.
SO ORDERED.
4. CHAVEZ V JBC
G.R. No. 202242
July 17, 2012
FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
DECISION
MENDOZA, J.:
The issue at hand has been in hibernation until the unexpected departure of Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of former Solicitor
General Francisco I. Chavez (petitioner), as his potential successor, triggered the
filing of this case. The issue has constantly been nagging legal minds, yet remained
dormant for lack of constitutional challenge.
As the matter is of extreme urgency considering the constitutional deadline in the
process of selecting the nominees for the vacant seat of the Chief Justice, the Court
cannot delay the resolution of the issue a day longer. Relegating it in the meantime
to the back burner is not an option.
Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow
more than one (1) member of Congress to sit in the JBC? Is the practice of having
two (2) representatives from each house of Congress with one (1) vote each
sanctioned by the Constitution? These are the pivotal questions to be resolved in
this original action for prohibition and injunction.

Long before the naissance of the present Constitution, the annals of history bear
witness to the fact that the exercise of appointing members of the Judiciary has
always been the exclusive prerogative of the executive and legislative branches of
the government. Like their progenitor of American origins, both the Malolos
Constitution1 and the 1935 Constitution2 had vested the power to appoint the
members of the Judiciary in the President, subject to confirmation by the
Commission on Appointments. It was during these times that the country became
witness to the deplorable practice of aspirants seeking confirmation of their
appointment in the Judiciary to ingratiate themselves with the members of the
legislative body.3
Then, with the fusion of executive and legislative power under the 1973
Constitution,4 the appointment of judges and justices was no longer subject to the
scrutiny of another body. It was absolute, except that the appointees must have all
the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary from
political pressure and partisan activities,5 the members of the Constitutional
Commission saw the need to create a separate, competent and independent body
to recommend nominees to the President. Thus, it conceived of a body
representative of all the stakeholders in the judicial appointment process and called
it the Judicial and Bar Council (JBC). Its composition, term and functions are provided
under Section 8, Article VIII of the Constitution, viz:
Section 8. (1) 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 officio 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.
(2) The regular members of the Council shall be appointed by the President for a
term of four years with the consent of the Commission on Appointments. Of the
Members first appointed, the representative of the Integrated Bar shall serve for
four years, the professor of law for three years, the retired Justice for two years, and
the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council
and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such emoluments as may be
determined by the Supreme Court. The Supreme Court shall provide in its annual
budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending appointees to the
Judiciary. It may exercise such other functions and duties as the Supreme Court may
assign to it.
In compliance therewith, Congress, from the moment of the creation of the JBC,
designated one representative to sit in the JBC to act as one of the ex officio
members.6 Perhaps in order to give equal opportunity to both houses to sit in the

exclusive body, the House of Representatives and the Senate would send alternate
representatives to the JBC. In other words, Congress had only one (1)
representative.
In 1994, the composition of the JBC was substantially altered. Instead of having only
seven (7) members, an eighth (8th) member was added to the JBC as two (2)
representatives from Congress began sitting in the JBC - one from the House of
Representatives and one from the Senate, with each having one-half (1/2) of a
vote.7 Then, curiously, the JBC En Banc, in separate meetings held in 2000 and
2001, decided to allow the representatives from the Senate and the House of
Representatives one full vote each.8 At present, Senator Francis Joseph G. Escudero
and Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as
representatives of the legislature.
It is this practice that petitioner has questioned in this petition, 9 setting forth the
following
GROUNDS FOR ALLOWANCE OF THE PETITION
I
Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in
that the JBC shall have only one representative from Congress.
II
The framers of the Constitution clearly envisioned, contemplated and decided on a
JBC composed of only seven (7) members.
III
Had the framers of the Constitution intended that the JBC composed of the one
member from the Senate and one member from the House of Representatives, they
could have easily said so as they did in the other provisions of the Constitution.
IV
The composition of the JBC providing for three ex-officio members is purposely
designed for a balanced representation of each of the three branches of the
government.
V
One of the two (2) members of the JBC from Congress has no right (not even
right) to sit in the said constitutional body and perform the duties and functions of a
member thereof.
VI
The JBC cannot conduct valid proceedings as its composition is illegal and
unconstitutional.10

On July 9, 2012, the JBC filed its Comment. 11 It, however, abstained from
recommending on how this constitutional issue should be disposed in gracious
deference to the wisdom of the Court. Nonetheless, the JBC was more than
generous enough to offer the insights of various personalities previously connected
with it.12
Through the Office of the Solicitor General (OSG), respondents defended their
position as members of the JBC in their Comment 13 filed on July 12, 2012. According
to them, the crux of the controversy is the phrase "a representative of Congress." 14
Reverting to the basics, they cite Section 1, Article VI of the Constitution 15 to
determine the meaning of the term
"Congress." It is their theory that the two houses, the Senate and the House of
Representatives, are permanent and mandatory components of "Congress," such
that the absence of either divests the term of its substantive meaning as expressed
under the Constitution. In simplistic terms, the House of Representatives, without
the Senate and vice-versa, is not Congress. 16 Bicameralism, as the system of choice
by the Framers, requires that both houses exercise their respective powers in the
performance of its mandated duty which is to legislate. Thus, when Section 8(1),
Article VIII of the Constitution speaks of "a representative from Congress," it should
mean one representative each from both Houses which comprise the entire
Congress.17
Tracing the subject provisions history, the respondents claim that when the JBC was
established, the Framers originally envisioned a unicameral legislative body,
thereby allocating "a representative of the National Assembly" to the JBC. The
phrase, however, was not modified to
aptly jive with the change to bicameralism, the legislative system finally adopted by
the Constitutional Commission on July 21, 1986. According to respondents, if the
Commissioners were made aware of the consequence of having a bicameral
legislature instead of a unicameral one, they would have made the corresponding
adjustment in the representation of Congress in the JBC. 18
The ambiguity having resulted from a plain case of inadvertence, the respondents
urge the Court to look beyond the letter of the disputed provision because the literal
adherence to its language would produce absurdity and incongruity to the bicameral
nature of Congress.19 In other words, placing either of the respondents in the JBC will
effectively deprive a house of Congress of its representation. In the same vein, the
electorate represented by Members of Congress will lose their only opportunity to
participate in the nomination process for the members of the Judiciary, effectively
diminishing the republican nature of the government. 20
The respondents further argue that the allowance of two (2) representatives of
Congress to be members of the JBC does not render the latters purpose nugatory.
While they admit that the purpose in creating the JBC was to insulate appointments
to the Judiciary from political influence, they likewise cautioned the Court that this
constitutional vision did not intend to entirely preclude political factor in said
appointments. Therefore, no evil should be perceived in the current set-up of the

JBC because two (2) members coming from Congress, whose membership to certain
political parties is irrelevant, does not necessarily amplify political partisanship in
the JBC. In fact, the presence of two (2) members from Congress will most likely
provide balance as against the other six (6) members who are undeniably
presidential appointees.21
The Issues
In resolving the procedural and substantive issues arising from the petition, as well
as the myriad of counter-arguments proffered by the respondents, the Court
synthesized them into two:
(1) Whether or not the conditions sine qua non for the exercise of the power of
judicial review have been met in this case; and
(2) Whether or not the current practice of the JBC to perform its functions with eight
(8) members, two (2) of whom are members of Congress, runs counter to the letter
and spirit of the 1987 Constitution.
The Power of Judicial Review
In its Comment, the JBC submits that petitioner is clothed with locusstandi to file the
petition, as a citizen and taxpayer, who has been nominated to the position of Chief
Justice.22
For the respondents, however, petitioner has no "real interest" in questioning the
constitutionality of the JBCs current composition. 23 As outlined in jurisprudence, it is
well-settled that for locus standi to lie, petitioner must exhibit that he has been
denied, or is about to be denied, of a personal right or privilege to which he is
entitled. Here, petitioner failed to manifest his acceptance of his recommendation to
the position of Chief Justice, thereby divesting him of a substantial interest in the
controversy. Without his name in the official list of applicants for the post, the
respondents claim that there is no personal stake on the part of petitioner that
would justify his outcry of unconstitutionality. Moreover, the mere allegation that
this case is of transcendental importance does not excuse the waiver of the rule on
locus standi, because, in the first place, the case lacks the requisites therefor. The
respondents also question petitioners belated filing of the petition. 24 Being aware
that the current composition of the JBC has been in practice since 1994, petitioners
silence for eighteen (18) years show that the constitutional issue being raised
before the Court does not comply with the "earliest possible opportunity"
requirement.
Before addressing the above issues in seriatim, the Court deems it proper to first
ascertain the nature of the petition. Pursuant to the rule that the nature of an action
is determined by the allegations therein and the character of the relief sought, the
Court views the petition as essentially an action for declaratory relief under Rule 63
of the 1997 Rules of Civil Procedure.25
The Constitution as the subject matter, and the validity and construction of Section
8 (1), Article VIII as the issue raised, the petition should properly be considered as

that which would result in the adjudication of rights sans the execution process
because the only relief to be granted is the very declaration of the rights under the
document sought to be construed. It being so, the original jurisdiction over the
petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact
that only questions of law are raised in the petition, an action for declaratory relief
is not among those within the original jurisdiction of this Court as provided in
Section 5, Article VIII of the Constitution.26
At any rate, due to its serious implications, not only to government processes
involved but also to the sanctity of the Constitution, the Court deems it more
prudent to take cognizance of it. After all, the petition is also for prohibition under
Rule 65 seeking to enjoin Congress from sending two (2) representatives with one
(1) full vote each to the JBC.
The Courts power of judicial review, like almost all other powers conferred by the
Constitution, is subject to several limitations, namely: (1) there must be an 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; and (4) the issue of constitutionality
must be the very lismota of the case. 27 Generally, a party will be allowed to litigate
only when these conditions sine qua non are present, especially when the
constitutionality of an act by a co-equal branch of government is put in issue.
Anent locus standi, the question to be answered is this: does the party possess a
personal stake in the outcome of the controversy as to assure that there is real,
concrete and legal conflict of rights and duties from the issues presented before the
Court? In David v. Macapagal-Arroyo, 28 the Court summarized the rules on locus
standi as culled from jurisprudence. There, it was held that taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that
the following requirements are met: (1) cases involve constitutional issues; (2) for
taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional; (3) for voters, there must be a showing of obvious
interest in the validity of the election law in question; (4) for concerned citizens,
there must be a showing that the issues raised are of transcendental importance
which must be settled early; and (5) for legislators, there must be a claim that the
official action complained of infringes upon their prerogatives as legislators.
In public suits, the plaintiff, representing the general public, asserts a "public right"
in assailing an allegedly illegal official action. The plaintiff may be a person who is
affected no differently from any other person, and can be suing as a "stranger," or
as a "citizen" or "taxpayer." Thus, taxpayers have been allowed to sue where there
is a claim that public funds are illegally disbursed or that public money is being
deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law. Of greater import than the
damage caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute. 29

In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen
and a nominee to the position of Chief Justice of the Supreme Court. As a taxpayer,
petitioner invokes his right to demand that the taxes he and the rest of the citizenry
have been paying to the government are spent for lawful purposes. According to
petitioner, "since the JBC derives financial support for its functions, operation and
proceedings from taxes paid, petitioner possesses as taxpayer both right and legal
standing to demand that the JBCs proceedings are not tainted with illegality and
that its composition and actions do not violate the Constitution." 30
Notably, petitioner takes pains in enumerating past actions that he had brought
before the Court where his legal standing was sustained. Although this inventory is
unnecessary to establish locus standi because obviously, not every case before the
Court exhibits similar issues and facts, the Court recognizes the petitioners right to
sue in this case. Clearly, petitioner has the legal standing to bring the present action
because he has a personal stake in the outcome of this controversy.
The Court disagrees with the respondents contention that petitioner lost his
standing to sue because he is not an official nominee for the post of Chief Justice.
While it is true that a "personal stake" on the case is imperative to have locus
standi, this is not to say that only official nominees for the post of Chief Justice can
come to the Court and question the JBC composition for being unconstitutional. The
JBC likewise screens and nominates other members of the Judiciary. Albeit heavily
publicized in this regard, the JBCs duty is not at all limited to the nominations for
the highest magistrate in the land. A vast number of aspirants to judicial posts all
over the country may be affected by the Courts ruling. More importantly, the
legality of the very process of nominations to the positions in the Judiciary is the
nucleus of the controversy. The Court considers this a constitutional issue that must
be passed upon, lest a constitutional process be plagued by misgivings, doubts and
worse, mistrust. Hence, a citizen has a right to bring this question to the Court,
clothed with legal standing and at the same time, armed with issues of
transcendental importance to society. The claim that the composition of the JBC is
illegal and unconstitutional is an object of concern, not just for a nominee to a
judicial post, but for all citizens who have the right to seek judicial intervention for
rectification of legal blunders.
With respect to the question of transcendental importance, it is not difficult to
perceive from the opposing arguments of the parties that the determinants
established in jurisprudence are attendant in this case: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party
with a more direct and specific interest in the questions being raised. 31 The
allegations of constitutional violations in this case are not empty attacks on the
wisdom of the other branches of the government. The allegations are substantiated
by facts and, therefore, deserve an evaluation from the Court. The Court need not
elaborate on the legal and societal ramifications of the issues raised. It cannot be
gainsaid that the JBC is a constitutional innovation crucial in the selection of the
magistrates in our judicial system.

The Composition of the JBC
Central to the resolution of the foregoing petition is an understanding of the
composition of the JBC as stated in the first paragraph of Section 8, Article VIII of the
Constitution. It reads:
Section 8. (1) 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 officio 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.
From a simple reading of the above-quoted provision, it can readily be discerned
that the provision is clear and unambiguous. The first paragraph calls for the
creation of a JBC and places the same under the supervision of the Court. Then it
goes to its composition where the regular members are enumerated: a
representative of the Integrated Bar, a professor of law, a retired member of the
Court and a representative from the private sector. On the second part lies the crux
of the present controversy. It enumerates the ex officio or special members of the
JBC composed of the Chief Justice, who shall be its Chairman, the Secretary of
Justice and "a representative of Congress."
As petitioner correctly posits, the use of the singular letter "a" preceding
"representative of Congress" is unequivocal and leaves no room for any other
construction. It is indicative of what the members of the Constitutional Commission
had in mind, that is, Congress may designate only one (1) representative to the JBC.
Had it been the intention that more than one (1) representative from the legislature
would sit in the JBC, the Framers could have, in no uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that where the words
of a statute are clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. 32 It is a well-settled principle
of constitutional construction that the language employed in the Constitution must
be given their ordinary meaning except where technical terms are employed. As
much as possible, the words of the Constitution 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.33Verbalegis non estrecedendum from the words of a statute there should be
no departure.34
The raison d tre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the objective
sought to be attained;35 and second, because the Constitution is not primarily a
lawyers document but essentially that of the people, in whose consciousness it
should ever be present as an important condition for the rule of law to prevail. 36
Moreover, under the maxim noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct

construction may be made clear and specific by considering the company of words
in which it is founded or with which it is associated. 37 This is because a word or
phrase in a statute is always used in association with other words or phrases, and
its meaning may, thus, be modified or restricted by the latter. 38 The particular
words, clauses and phrases should not be studied as detached and isolated
expressions, but the whole and every part of the statute must be considered in
fixing the meaning of any of its parts and in order to produce a harmonious whole. A
statute must be so construed as to harmonize and give effect to all its provisions
whenever possible.39 In short, every meaning to be given to each word or phrase
must be ascertained from the context of the body of the statute since a word or
phrase in a statute is always used in association with other words or phrases and its
meaning may be modified or restricted by the latter.
Applying the foregoing principle to this case, it becomes apparent that the word
"Congress" used in Article VIII, Section 8(1) of the Constitution is used in its generic
sense. No particular allusion whatsoever is made on whether the Senate or the
House of Representatives is being referred to, but that, in either case, only a
singular representative may be allowed to sit in the JBC. The foregoing declaration is
but sensible, since, as pointed out by an esteemed former member of the Court and
consultant of the JBC in his memorandum, 40 "from the enumeration of the
membership of the JBC, it is patent that each category of members pertained to a
single individual only."41
Indeed, the spirit and reason of the statute may be passed upon where a literal
meaning would lead to absurdity, contradiction, injustice, or defeat the clear
purpose of the lawmakers.42 Not any of these instances, however, is present in the
case at bench. Considering that the language of the subject constitutional provision
is plain and unambiguous, there is no need to resort extrinsic aids such as records
of the Constitutional Commission.
Nevertheless, even if the Court should proceed to look into the minds of the
members of the Constitutional Commission, it is undeniable from the records
thereof that it was intended that the JBC be composed of seven (7) members only.
Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the appointments of members
of the Supreme Court and judges of the lower courts. At present it is the President
who appoints them. If there is a Commission on Appointments, then it is the
President with the confirmation of the Commission on Appointment. In this proposal,
we would like to establish a new office, a sort of a board composed of seven
members called the Judicial and Bar Council. And while the President will still
appoint the member of the judiciary, he will be limited to the recommendees of this
Council.
x xxxxxxxx

MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the President
appoints four of them who are regular members.
x xxxxxxxx
MR. CONCEPCION. The only purpose of the Committee is to eliminate partisan
politics.43
x xxxxxxxx
MR. RODRIGO. If my amendment is approved, then the provision will be exactly the
same as the provision in the 1935 Constitution, Article VIII, Section 5.
x xxxxxxxx
If we do not remove the proposed amendment on the creation of the Judicial and
Bar Council, this will be a diminution of the appointing power of the highest
magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The appointing power
will be limited by a group of seven people who are not elected by the people but
only appointed.
Mr. Presiding Officer, if this Council is created, there will be no uniformity in our
constitutional provisions on appointments. The members of the Judiciary will be
segregated from the rest of the government. Even a municipal judge cannot be
appointed by the President except upon recommendation or nomination of the three
names by this Committee of seven people, commissioners of the Commission on
Elections, the COA and the Commission on Civil Serviceeven ambassadors,
generals of the Army will not come under this restriction. Why are we going to
segregate the Judiciary from the rest of our government in the appointment of highranking officials?
Another reason is that this Council will be ineffective. It will just besmirch the honor
of our President without being effective at all because this Council will be under the
influence of the President. Four out of seven are appointees of the President and
they can be reappointed when their term ends. Therefore, they would be kowtow
the President. A fifth member is the Minister of Justice, an alter ego of the President.
Another member represents the Legislature. In all probability, the controlling part in
the legislature belongs to the President and, therefore, this representative form the
National Assembly is also under the influence of the President. And may I say, Mr.
Presiding Officer, that event the Chief Justice of the Supreme Court is an appointee
of the President. So it is futile he will be influence anyway by the President. 44
[Emphases supplied]
At this juncture, it is worthy to note that the seven-member composition of the JBC
serves a practical purpose, that is, to provide a solution should there be a stalemate
in voting. This underlying reason leads the Court to conclude that a single vote may
not be divided into half (1/2), between two representatives of Congress, or among
any of the sitting members of the JBC for that matter. This unsanctioned practice
can possibly cause disorder and eventually muddle the JBCs voting process,

especially in the event a tie is reached. The aforesaid purpose would then be
rendered illusory, defeating the precise mechanism which the Constitution itself
created. While it would be unreasonable to expect that the Framers provide for
every possible scenario, it is sensible to presume that they knew that an odd
composition is the best means to break a voting deadlock.
The respondents insist that owing to the bicameral nature of Congress, the word
"Congress" in Section 8(1), Article VIII of the Constitution should be read as
including both the Senate and the House of Representatives. They theorize that it
was so worded because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress.
Then, when the Constitutional Commission eventually adopted a bicameral form of
Congress, the Framers, through oversight, failed to amend Article VIII, Section 8 of
the Constitution.45 On this score, the Court cites the insightful analysis of another
member of the Court and JBC consultant, retired Justice Consuelo Ynares-Santiago. 46
Thus:
A perusal of the records of the Constitutional Commission reveals that the
composition of the JBC reflects the Commissions desire "to have in the Council a
representation for the major elements of the community." xxx The ex-officio
members of the Council consist of representatives from the three main branches of
government while the regular members are composed of various stakeholders in the
judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat
each ex-officio member as representing one co-equal branch of
government.xxxThus, the JBC was designed to have seven voting members with
the three ex-officio members having equal say in the choice of judicial nominees.
x xxxxxxxx
No parallelism can be drawn between the representative of Congress in
the JBC and the exercise by Congress of its legislative powers under
Article VI and constituent powers under Article XVII of the Constitution.
Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch of in the matter of its
representative in the JBC. On the other hand, the exercise of legislative and
constituent powers requires the Senate and House of Representatives to coordinate
and act as distinct bodies in furtherance of Congress role under our constitutional
scheme. While the latter justifies and, in fact, necessitates the
separateness of the two houses of Congress as they relate inter se, no
such dichotomy need be made when Congress interacts with the other two
co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental
branches to assign the same weight to considerations that any of its
representatives may have regarding aspiring nominees to the judiciary.
The representatives of the Senate and the House of Representatives act
as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly

bestowed upon the three. Sound reason and principle of equality among the
three branches support this conclusion. [Emphases and underscoring supplied]
More than the reasoning provided in the above discussed rules of constitutional
construction, the Court finds the above thesis as the paramount justification of the
Courts conclusion that "Congress," in the context of JBC representation, should be
considered as one body. It is evident that the definition of "Congress" as a bicameral
body refers to its primary function in government - to legislate. 47 In the passage of
laws, the Constitution is explicit in the distinction of the role of each house in the
process. The same holds true in Congress non-legislative powers such as, inter alia,
the power of appropriation,48 the declaration of an existence of a state of war, 49
canvassing of electoral returns for the President and Vice-President, 50 and
impeachment.51 In the exercise of these powers, the Constitution employs precise
language in laying down the roles which a particular house plays, regardless of
whether the two houses consummate an official act by voting jointly or separately.
An inter-play between the two houses is necessary in the realization of these powers
causing a vivid dichotomy that the Court cannot simply discount. Verily, each house
is constitutionally granted with powers and functions peculiar to its nature and with
keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, to the other branches of
government.
This, however, cannot be said in the case of JBC representation because no liaison
between the two houses exists in the workings of the JBC. No mechanism is required
between the Senate and the House of Representatives in the screening and
nomination of judicial officers. Hence, the term "Congress" must be taken to mean
the entirelegislative department. A fortiori, a pretext of oversight cannot prevail
over the more pragmatic scheme which the Constitution laid with firmness, that is,
that the JBC has a seat for a single representative of Congress, as one of the coequal branches of government.
Doubtless, the Framers of our Constitution intended to create a JBC as an innovative
solution in response to the public clamor in favor of eliminating politics in the
appointment of members of the Judiciary. 52 To ensure judicial independence, they
adopted a holistic approach and hoped that, in creating a JBC, the private sector
and the three branches of government would have an active role and equal voice in
the selection of the members of the Judiciary.
Therefore, to allow the Legislature to have more quantitative influence in the JBC by
having more than one voice speak, whether with one full vote or one-half (1/2) a
vote each, would, as one former congressman and member of the JBC put it,
"negate the principle of equality among the three branches of government which is
enshrined in the Constitution."53
To quote one former Secretary of Justice:
The present imbalance in voting power between the Legislative and the other
sectors represented in the JBC must be corrected especially when considered vis-vis the avowed purpose for its creation, i.e., to insulate the appointments in the

Judiciary against political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one (1) vote in the
Council, Congress, as compared to the other members of the JBC, is accorded
greater and unwarranted influence in the appointment of judges. 54[Emphasis
supplied]
It is clear, therefore, that the Constitution mandates that the JBC be composed of
seven (7) members only. Thus, any inclusion of another member, whether with one
whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of
the Constitution, providing Congress with an equal voice with other members of the
JBC in recommending appointees to the Judiciary is explicit. Any circumvention of
the constitutional mandate should not be countenanced for the Constitution is the
supreme law of the land. The Constitution is the basic and paramount law to which
all other laws must conform and to which all persons, including the highest officials
of the land, must defer. Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the whims and caprices of the
government and the people who run it. 55 Hence, any act of the government or of a
public official or employee which is contrary to the Constitution is illegal, null and
void.
As to the effect of the Courts finding that the current composition of the JBC is
unconstitutional, it bears mentioning that as a general rule, an unconstitutional act
is not a law; it confers no rights; it imposes no duties; it affords no protection; it
creates no office; it is inoperative as if it has not been passed at all. 56 This rule,
however, is not absolute. In the interest of fair play under the doctrine of operative
facts, actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil
Corporation,57the Court explained:
The doctrine of operative fact, as an exception to the general rule, only applies as a
matter of equity and fair play.1wphi1 It nullifies the effects of an unconstitutional
law by recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot
always be ignored. The past cannot always be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law. Thus, it was applied to a
criminal case when a declaration of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done by a municipality in reliance
upon a law creating it.
Considering the circumstances, the Court finds the exception applicable in this case
and holds that notwithstanding its finding of unconstitutionality in the current
composition of the JBC, all its prior official actions are nonetheless valid.
At this point, the Court takes the initiative to clarify that it is not in a position to
determine as to who should remain as the sole representative of Congress in the

JBC. This is a matter beyond the province of the Court and is best left to the
determination of Congress.
Finally, while the Court finds wisdom in respondents' contention that both the
Senate and the House of Representatives should be equally represented in the JBC,
the Court is not in a position to stamp its imprimatur on such a construction at the
risk of expanding the meaning of the Constitution as currently worded. Needless to
state, the remedy lies in the amendment of this constitutional provision. The courts
merely give effect to the lawgiver's intent. The solemn power and duty of the Court
to interpret and apply the law does not include the power to correct, by reading into
the law what is not written therein.
WHEREFORE, the petition is GRANTED. The current numerical composition of the
Judicial and Bar Council IS declared UNCONSTITUTIONAL. The Judicial and Bar
Council is hereby enjoined to reconstitute itself so that only one ( 1) member of
Congress will sit as a representative in its proceedings, in accordance with Section
8( 1 ), Article
VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
5. PERFECTO V MEER
G.R. No. L-2348
February 27, 1950
GREGORIO PERFECTO, plaintiff-appellee,

vs.
BIBIANO MEER, Collector of Internal Revenue, defendant-appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon
for oppositor and appellant.
Gregorio Perfecto in his own behalf.
BENGZON, J.:
In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio
Perfecto to pay income tax upon his salary as member of this Court during the year
1946. After paying the amount (P802), he instituted this action in the Manila Court
of First Instance contending that the assessment was illegal, his salary not being
taxable for the reason that imposition of taxes thereon would reduce it in violation
of the Constitution.
The Manila judge upheld his contention, and required the refund of the amount
collected. The defendant appealed.
The death of Mr. Justice Perfecto has freed us from the embarrassment of passing
upon the claim of a colleague. Still, as the outcome indirectly affects all the
members of the Court, consideration of the matter is not without its vexing feature.
Yet adjudication may not be declined, because (a) we are not legally disqualified; (b)
jurisdiction may not be renounced, ad it is the defendant who appeals to this Court,
and there is no other tribunal to which the controversy may be referred; (c) supreme
courts in the United States have decided similar disputes relating to themselves; (d)
the question touches all the members of the judiciary from top to bottom; and (e)
the issue involves the right of other constitutional officers whose compensation is
equally protected by the Constitution, for instance, the President, the AuditorGeneral and the members of the Commission on Elections. Anyway the subject has
been thoroughly discussed in many American lawsuits and opinions, and we shall
hardly do nothing more than to borrow therefrom and to compare their conclusions

to local conditions. There shall be little occasion to formulate new propositions, for
the situation is not unprecedented.
Our Constitution provides in its Article VIII, section 9, that the members of the
Supreme Court and all judges of inferior courts "shall receive such compensation as
may be fixed by law, which shall not be diminished during their continuance in
office." It also provides that "until Congress shall provide otherwise, the Chief Justice
of the Supreme Court shall receive an annual compensation of sixteen thousand
pesos". When in 1945 Mr. Justice Perfecto assumed office, Congress had not
"provided otherwise", by fixing a different salary for associate justices. He received
salary at the rate provided by the Constitution, i.e., fifteen thousand pesos a year.
Now, does the imposition of an income tax upon this salary in 1946 amount to a
diminution thereof?.
A note found at page 534 of volume 11 of the American Law Reports answers the
question in the affirmative. It says:
Where the Constitution of a state provides that the salaries of its judicial officers
shall not be dismissed during their continuance in office, it had been held that the
state legislature cannot impose a tax upon the compensation paid to the judges of
its court. New Orleans v. Lea (1859) 14 La. Ann. 194; Opinion of Attorney-General if
N. C. (1856) 48 N. C. (3 Jones, L.) Appx. 1; Re Taxation of Salaries of Judges (1902)
131 N. C. 692, 42 S. E. 970; Com. ex. rel. Hepburn v. Mann (1843) 5 Watts & S,. (Pa.)
403 [but see to the contrary the earlier and much criticized case of Northumberland
county v. Chapman (1829) 2 Rawle (Pa.) 73]*
A different rule prevails in Wisconsin, according to the same annotation. Another
state holding the contrary view is Missouri.
The Constitution of the United States, likes ours, forbids the diminution of the
compensation of Judges of the Supreme Court and of inferior courts. The Federal
Governments has an income tax law. Does it embrace the salaries of federal judges?
In answering this question, we should consider four periods:
First period. No attempts was made to tax the compensation of Federal judges up to
1862 1.
Second period. 1862-1918. In July, 1862, a statute was passed subjecting the
salaries of "civil officers of the United States" to an income tax of three per cent.
Revenue officers, construed it as including the compensation of all judges; but Chief
Justice Taney, speaking for the judiciary, wrote to the Secretary of the Treasury a
letter of protest saying, among other things:
The act in question, as you interpret it, diminishes the compensation of every judge
3 per cent, and if it can be diminished to that extent by the name of a tax, it may, in
the same way, be reduced from time to time, at the pleasure of the legislature.
The judiciary is one of the three great departments of the government, created and
established by the Constitution. Its duties and powers are specifically set forth, and
are of a character that requires it to be perfectly independent of the two other

departments, and in order to place it beyond the reach and above even the
suspicion of any such influence, the power to reduce their compensation is
expressly withheld from Congress, and excepted from their powers of legislation.
Language could not be more plain than that used in the Constitution. It is,
moreover, one of its most important and essential provisions. For the articles which
limits the powers of the legislative and executive branches of the government, and
those which provide safeguards for the protection of the citizen in his person and
property, would be of little value without a judiciary to uphold and maintain them,
which was free from every influence, direct and indirect, that might by possibility in
times of political excitement warp their judgments.
Upon these grounds I regard an act of Congress retaining in the Treasury a portion
of the Compensation of the judges, as unconstitutional and void 2.
The protest was unheeded, although it apparently bore the approval of the whole
Supreme Court, that ordered it printed among its records. But in 1869 AttorneyGeneral Hoar upon the request of the Secretary of the Treasury rendered an opinion
agreeing with the Chief Justice. The collection of the tax was consequently
discontinued and the amounts theretofore received were all refunded. For half a
century thereafter judges' salaries were not taxed as income. 3
Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly
provided that taxable income shall include "the compensation of the judges of the
Supreme Court and inferior courts of the United States". Under such Act, Walter
Evans, United States judge since 1899, paid income tax on his salary; and
maintaining that the impost reduced his compensation, he sued to recover the
money he had delivered under protest. He was upheld in 1920 by the Supreme
Court in an epoch-making decision.*, explaining the purpose, history and meaning of
the Constitutional provision forbidding impairment of judicial salaries and the effect
of an income tax upon the salary of a judge.
With what purpose does the Constitution provide that the compensation of the
judges "shall not be diminished during their continuance in office"? Is it primarily to
benefit the judges, or rather to promote the public weal by giving them that
independence which makes for an impartial and courageous discharge of the
judicial function? Does the provision merely forbid direct diminution, such as
expressly reducing the compensation from a greater to a less sum per year, and
thereby leave the way open for indirect, yet effective, diminution, such as
withholding or calling back a part as tax on the whole? Or does it mean that the
judge shall have a sure and continuing right to the compensation, whereon he
confidently may rely for his support during his continuance in office, so that he need
have no apprehension lest his situation in this regard may be changed to his
disadvantage?
The Constitution was framed on the fundamental theory that a larger measure of
liberty and justice would be assured by vesting the three powers the legislative,
the executive, and the judicial in separate departments, each relatively
independent of the others and it was recognized that without this independence

if it was not made both real and enduring the separation would fail of its purpose.
all agreed that restraints and checks must be imposed to secure the requisite
measure of independence; for otherwise the legislative department, inherently the
strongest, might encroach on or even come to dominate the others, and the judicial,
naturally the weakest, might be dwarf or swayed by the other two, especially by the
legislative.
The particular need for making the judiciary independent was elaborately pointed
our by Alexander Hamilton in the Federalist, No. 78, from which we excerpt the
following:
x xxxxxxxx
At a later period John Marshall, whose rich experience as lawyer, legislator, and
chief justice enable him to speak as no one else could, tersely said (debates Va.
Gonv. 1829-1831, pp. 616, 619): . . . Our courts are the balance wheel of our whole
constitutional system; and our is the only constitutional system so balanced and
controlled. Other constitutional systems lacks complete poise and certainly of
operation because they lack the support and interpretation of authoritative,
undisputable courts of law. It is clear beyond all need of exposition that for the
definite maintenance of constitutional understandings it is indispensable, alike for
the preservation of the liberty of the individual and for the preservation of the
integrity of the powers of the government, that there should be some nonpolitical
forum in which those understandings can be impartially debated and determined.
That forum our courts supply. There the individual may assert his rights; there the
government must accept definition of its authority. There the individual may
challenge the legality of governmental action and have it adjudged by the test of
fundamental principles, and that test the government must abide; there the
government can check the too aggressive self-assertion of the individual and
establish its power upon lines which all can comprehend and heed. The
constitutional powers of the courts constitute the ultimate safeguard alike of
individual privilege and of governmental prerogative. It is in this sense that our
judiciary is the balance wheel of our entire system; it is meant to maintain that nice
adjustment between individual rights and governmental powers which constitutes
political liberty. Constitutional government in the United States, pp. 17, 142.
Conscious in the nature and scope of the power being vested in the national courts,
recognizing that they would be charge with responsibilities more delicate and
important than any ever before confide to judicial tribunals, and appreciating that
they were to be, in the words of George Washington, "the keystone of our political
fabric", the convention with unusual accord incorporated in the Constitution the
provision that the judges "shall hold their offices during good behavior, and shall at
stated times receive for their services a compensation which shall not be diminished
during their continuance in office." Can there be any doubt that the two things thus
coupled in place the clause in respect of tenure during good behaviour and that
in respect of an undiminishable compensation-were equally coupled in purpose?
And is it not plain that their purposes was to invest the judges with an
independence in keeping with the delicacy and importance of their task, and with

the imperative need for its impartial and fearless performance? Mr. Hamilton said in
explanation and support of the provision (Federalist No. 79): "Next to permanency in
office, nothing can contribute more to the independence of the judges than a fixed
provision for their support. . . . In the general course of human nature, a power over
a man's subsistence amounts to a power over his will.
x xxxxxxxx
These considerations make it very plain, as we think, that the primary purpose of
the prohibition against diminution was not to benefit the judges, but, like the clause
in respect of tenure, to attract good and competent men to the bench, and to
promote that independence of action and judgment which is essential to the
maintenance of the guaranties, limitations, and pervading principles of the
constitution, and to the admiration of justice without respect to persons, and with
equal concern for the poor and the rich.
x xxxxxxxx
But it is urged that what plaintiff was made to pay back was an income tax, and that
a like tax was exacted of others engaged in private employment.
If the tax in respect of his compensation be prohibited, it can find no justification in
the taxation of other income as to which there is no prohibition, for, of course, doing
what the Constitution permits gives no license to do what it prohibits.
The prohibition is general, contains no excepting words, and appears to be directed
against all diminution, whether for one purpose or another; and the reason for its
adoption, as publicly assigned at the time and commonly accepted ever since, make
with impelling force for the conclusion that the fathers of the Constitution intended
to prohibit diminution by taxation as well as otherwise, that they regarded the
independence of the judges as of far greater importance than any revenue that
could come from taxing their salaries. (American law Reports, annotated, Vol. 11,
pp. 522-25; Evans vs. Gore, supra.)
In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites
States court of claims. His salary was taxed by virtue of the same time income tax
of February 24, 1919. At the time he qualified, a statute fixed his salary at P7,500.
He filed action for reimbursement, submitting the same theory on which Evans v.
Gore had been decided. The Supreme Court of the United States in 1925 reaffirmed
that decision. It overruled the distinction offered by Solicitor-General Beck that
Judge Graham took office after the income tax had been levied on judicial salaries,
(Evans qualified before), and that Congress had power "to impose taxes which
should apply to the salaries of Federal judges appointed after the enactment of the
taxing statute." (The law had made no distinction as to judges appointed before or
after its passage)
Fourth period. 1939 Foiled in their
persisted, and succeeded in inserting in
1932 the modified proviso that "gross
included the compensation "of judges of
previous attempts, the Revenue men

the United States Revenue Act of June,
income" on which taxes were payable
courts of the United States taking office

after June 6, 1932". Joseph W. Woodrough qualified as United States circuit judge on
May 1, 1933. His salary as judge was taxed, and before the Supreme Court of the
United States the issue of decrease of remuneration again came up. That court,
however, ruled against him, declaring (in 1939) that Congress had the power to
adopt the law. It said:
The question immediately before us is whether Congress exceeded its constitutional
power in providing that United States judges appointed after the Revenue Act of
1932 shall not enjoy immunity from the incidence of taxation to which everyone
else within the defined classes of income is subjected. Thereby, of course, Congress
has committed itself to the position that a non-discriminatory tax laid generally on
net income is not, when applied to the income of federal judge, a diminution of his
salary within the prohibition of Article 3, Sec. 1 of the Constitution. To suggest that it
makes inroads upon the independence of judges who took office after the Congress
has thus charged them with the common duties of citizenship, by making them bear
their aliquot share of the cost of maintaining the Government, is to trivialize the
great historic experience on which the framers based the safeguards of Article 3,
Sec. 1. To subject them to a general tax is merely to recognize that judges also are
citizens, and that their particular function in government does not generate an
immunity from sharing with their fellow citizens the material burden of the
government whose Constitution and laws they are charged with administering.
(O'Malley vs. Woodrough, 59 S. Ct. 838, A. L. R. 1379.)
Now, the case for the defendant-appellant Collector of Internal Revenue is premised
mainly on this decision (Note A). He claims it holds "that federal judges are subject
to the payment of income taxes without violating the constitutional prohibition
against the reduction of their salaries during their continuance in office", and that it
"is a complete repudiation of the ratio decidenci of Evans vs. Gore". To grasp the full
import of the O'Malley precedent, we should bear in mind that:
1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court
now says is inconsistent with what said in Miles vs. Graham, the latter can not
survive", Justice Frankfurter announced.
2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it
indicates that the Congressional Act in dispute avoided in part the consequences of
that case.
Carefully analyzing the three cases (Evans, Miles and O'Malley) and piecing them
together, the logical conclusion may be reached that although Congress may validly
declare by law that salaries of judges appointed thereafter shall be taxed as income
(O'Malley vs. Woodrough) it may not tax the salaries of those judges already in
office at the time of such declaration because such taxation would diminish their
salaries (Evans vs. Gore; Miles vs. Graham). In this manner the rationalizing
principle that will harmonize the allegedly discordant decision may be condensed.
By the way, Justice Frankfurter, writing the O'Malley decision, says the Evans
precedent met with disfavor from legal scholarship opinion. Examining the issues of
Harvard Law review at the time of Evans vs. Gore (Frankfurter is a Harvard graduate

and professor), we found that such school publication criticized it. Believing this to
be the "inarticulate consideration that may have influenced the grounds on which
the case went off"4, we looked into the criticism, and discovered that it was
predicated on the position that the 16th Amendment empowered Congress "to
collect taxes on incomes from whatever source derived" admitting of no exception.
Said the Harvard Law Journal:
In the recent case of Evans vs. Gore the Supreme Court of the United States decided
that by taxing the salary of a federal judge as a part of his income, Congress was in
effect reducing his salary and thus violating Art. III, sec. 1, of the Constitution.
Admitting for the present purpose that such a tax really is a reduction of salary,
even so it would seem that the words of the amendment giving power to tax
'incomes, from whatever source derived', are sufficiently strong to overrule pro
tanto the provisions of Art. III, sec. 1. But, two years ago, the court had already
suggested that the amendment in no way extended the subjects open to federal
taxation. The decision in Evans vs. Gore affirms that view, and virtually strikes from
the amendment the words "from whatever source derived". (Harvard law Review,
vol. 34, p. 70)
The Unites States Court's shift of position 5 might be attributed to the above
detraction which, without appearing on the surface, led to Frankfurter's sweeping
expression about judges being also citizens liable to income tax. But it must be
remembered that undisclosed factor the 16th Amendment has no counterpart
in the Philippine legal system. Our Constitution does not repeat it. Wherefore, as the
underlying influence and the unuttered reason has no validity in this jurisdiction, the
broad generality loses much of its force.
Anyhow the O'Malley case declares no more than that Congress may validly enact a
law taxing the salaries of judges appointed after its passage. Here in the Philippines
no such law has been approved.
Besides, it is markworthy that, as Judge Woodrough had qualified after the express
legislative declaration taxing salaries, he could not very well complain. The United
States Supreme Court probably had in mind what in other cases was maintained,
namely, that the tax levied on the salary in effect decreased the emoluments of the
office and therefore the judge qualified with such reduced emoluments.6
The O'Malley ruling does not cover the situation in which judges already in office are
made to pay tax by executive interpretation, without express legislative declaration.
That state of affairs is controlled by the administrative and judicial standards hereinbefore described in the "second period" of the Federal Government, namely, the
views of Chief Justice Taney and of Attorney-General Hoar and the constant practice
from 1869 to 1938, i.e., when the Income Tax Law merely taxes "income" in general,
it does not include salaries of judges protected from diminution.
In this connection the respondent would make capital of the circumstance that the
Act of 1932, upheld in the O'Malley case, has subsequently been amended by
making it applicable even to judges who took office before1932. This shows, the
appellant argues, that Congress interprets the O'Malley ruling to permit legislative

taxation of the salary of judges whether appointed before the tax or after. The
answer to this is that the Federal Supreme Court expressly withheld opinion on that
amendment in the O'Malley case. Which is significant. Anyway, and again, there is
here no congressional directive taxing judges' salaries.
Wherefore, unless and until our Legislature approves an amendment to the Income
Tax Law expressly taxing "that salaries of judges thereafter appointed", the O'Malley
case is not relevant. As in the United States during the second period, we must hold
that salaries of judges are not included in the word "income" taxed by the Income
Tax Law. Two paramount circumstances may additionally be indicated, to wit: First,
when the Income Tax Law was first applied to the Philippines 1913, taxable
"income" did not include salaries of judicial officers when these are protected from
diminution. That was the prevailing official belief in the United States, which must
be deemed to have been transplanted here; 7 and second, when the Philippine
Constitutional Convention approved (in 1935) the prohibition against diminution off
the judges' compensation, the Federal principle was known that income tax on
judicial salaries really impairs them. Evans vs. Gore and Miles vs. Graham were then
outstanding doctrines; and the inference is not illogical that in restraining the
impairment of judicial compensation the Fathers of the Constitution intended to
preclude taxation of the same.8
It seems that prior to the O'Malley decision the Philippine Government did not
collect income tax on salaries of judges. This may be gleaned from General Circular
No. 449 of the Department of Finance dated March 4, 1940, which says in part:
x xxxxxxxx
The question of whether or not the salaries of judges should be taken into account
in computing additional residence taxes is closely linked with the liability of judges
to income tax on their salaries, in fact, whatever resolution is adopted with respect
to either of said taxes be followed with respect to the other. The opinion of the
Supreme Court of the United States in the case of O'Malley v. Woodrough, 59 S. Ct.
838, to which the attention of this department has been drawn, appears to have
enunciated a new doctrine regarding the liability of judges to income tax upon their
salaries. In view of the fact that the question is of great significance, the matter was
taken up in the Council of State, and the Honorable, the Secretary of Justice was
requested to give an opinion on whether or not, having in mind the said decision of
the Supreme Court of the United States in the case of O'Malley v. Woodrough, there
is justification in reversing our present ruling to the effect that judges are not liable
to tax on their salaries. After going over the opinion of the court in the said case,
the Honorable, the Secretary of Justice, stated that although the ruling of the
Supreme Court of the United States is not binding in the Philippines, the doctrine
therein enunciated has resolved the issue of the taxability of judges' salaries into a
question of policy. Forthwith, His Excellency the President decided that the best
policy to adopt would be to collect income and additional residence taxes from the
President of the Philippines, the members of the Judiciary, and the Auditor General,
and the undersigned was authorized to act accordingly.

In view of the foregoing, income and additional residence taxes should be levied on
the salaries received by the President of the Philippines, members of the Judiciary,
and the Auditor General during the calendar year 1939 and thereafter. . . . .
(Emphasis ours.)
Of course, the Secretary of Justice correctly opined that the O'Malley decision
"resolved the issue of taxability of judges' salaries into a question of policy." But
that policy must be enunciated by Congressional enactment, as was done in the
O'Malley case, not by Executive Fiat or interpretation.
This is not proclaiming a general tax immunity for men on the bench. These pay
taxes. Upon buying gasoline, or other commodities, they pay the corresponding
duties. Owning real property, they pay taxes thereon. And on incomes other than
their judicial salary, assessments are levied. It is only when the tax is charged
directly on their salary and the effect of the tax is to diminish their official stipend
that the taxation must be resisted as an infringement of the fundamental charter.
Judges would indeed be hapless guardians of the Constitution if they did not
perceive and block encroachments upon their prerogatives in whatever form. The
undiminishable character of judicial salaries is not a mere privilege of judges
personal and therefore waivable but a basic limitation upon legislative or
executive action imposed in the public interest. (Evans vs. Gore)
Indeed the exemption of the judicial salary from reduction by taxation is not really a
gratuity or privilege. Let the highest court of Maryland speak:
The exemption of the judicial compensation from reduction is not in any true sense
a gratuity, privilege or exemption. It is essentially and primarily compensation
based upon valuable consideration. The covenant on the part of the government is
a guaranty whose fulfillment is as much as part of the consideration agreed as is
the money salary. The undertaking has its own particular value to the citizens in
securing the independence of the judiciary in crises; and in the establishment of the
compensation upon a permanent foundation whereby judicial preferment may be
prudently accepted by those who are qualified by talent, knowledge, integrity and
capacity, but are not possessed of such a private fortune as to make an assured
salary an object of personal concern. On the other hand, the members of the
judiciary relinquish their position at the bar, with all its professional emoluments,
sever their connection with their clients, and dedicate themselves exclusively to the
discharge of the onerous duties of their high office. So, it is irrefutable that they
guaranty against a reduction of salary by the imposition of a tax is not an
exemption from taxation in the sense of freedom from a burden or service to which
others are liable. The exemption for a public purpose or a valid consideration is
merely a nominal exemption, since the valid and full consideration or the public
purpose promoted is received in the place of the tax. Theory and Practice of
Taxation (1900), D. A. Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl. Rep. 2d
Series, p. 80)
It is hard to see, appellants asserts, how the imposition of the income tax may
imperil the independence of the judicial department. The danger may be

demonstrated. Suppose there is power to tax the salary of judges, and the judiciary
incurs the displeasure of the Legislature and the Executive. In retaliation the income
tax law is amended so as to levy a 30 per cent on all salaries of government officials
on the level of judges. This naturally reduces the salary of the judges by 30 per
cent, but they may not grumble because the tax is general on all receiving the
same amount of earning, and affects the Executive and the Legislative branches in
equal measure. However, means are provided thereafter in other laws, for the
increase of salaries of the Executive and the Legislative branches, or their
perquisites such as allowances, per diems, quarters, etc. that actually compensate
for the 30 per cent reduction on their salaries. Result: Judges compensation is
thereby diminished during their incumbency thanks to the income tax law.
Consequence: Judges must "toe the line" or else. Second consequence: Some few
judges might falter; the great majority will not. But knowing the frailty of human
nature, and this chink in the judicial armor, will the parties losing their cases against
the Executive or the Congress believe that the judicature has not yielded to their
pressure?
Respondent asserts in argumentation that by executive order the President has
subjected his salary to the income tax law. In our opinion this shows obviously that,
without such voluntary act of the President, his salary would not be taxable,
because of constitutional protection against diminution. To argue from this
executive gesture that the judiciary could, and should act in like manner is to
assume that, in the matter of compensation and power and need of security, the
judiciary is on a par with the Executive. Such assumption certainly ignores the
prevailing state of affairs.
The judgment will be affirmed. So ordered.
Moran, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.
6. ENDENCIA V DAVID
G.R. No. L-6355-56
August 31, 1953
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,

vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro
for
appellant.
Manuel O. Chan for appellees.
MONTEMAYOR, J.:
This is a joint appeal from the decision of the Court of First Instance of Manila
declaring section 13 of Republic Act No. 590 unconstitutional, and ordering the
appellant Saturnino David as Collector of Internal Revenue to re-fund to Justice
Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on
his salary as Associate Justice of the Court of Appeals in 1951, and to Justice
Fernando Jugo the amount of P2,345.46, representing the income tax collected on
his salary from January 1,1950 to October 19, 1950, as Presiding Justice of the Court
of Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice
of the Supreme Court, without special pronouncement as to costs.
Because of the similarity of the two cases, involving as they do the same question
of law, they were jointly submitted for determination in the lower court. Judge
Higinio B. Macadaeg presiding, in a rather exhaustive and well considered decision
found and held that under the doctrine laid down by this Court in the case of
Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the salaries of
Justice Jugo and Justice Endencia was a diminution of their compensation and
therefore was in violation of the Constitution of the Philippines, and so ordered the
refund of said taxes.
We see no profit and necessity in again discussing and considering the proposition
and the arguments pro and cons involved in the case of Perfecto vs. Meer, supra,

which are raised, brought up and presented here. In that case, we have held despite
the ruling enunciated by the United States Federal Supreme Court in the case of O
'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in
the Philippines is a diminution of such salary and so violates the Constitution. We
shall now confine our-selves to a discussion and determination of the remaining
question of whether or not Republic Act No. 590, particularly section 13, can justify
and legalize the collection of income tax on the salary of judicial officers.
According to the brief of the Solicitor General on behalf of appellant Collector of
Internal Revenue, our decision in the case of Perfecto vs. Meer, supra, was not
received favorably by Congress, because immediately after its promulgation,
Congress enacted Republic Act No. 590. To bring home his point, the Solicitor
General reproduced what he considers the pertinent discussion in the Lower House
of House Bill No. 1127 which became Republic Act No. 590.
For purposes of reference, we are reproducing section 9, Article VIII of our
Constitution:.
SEC. 9. The members of the Supreme Court and all judges of inferior courts shall
hold office during good behavior, until they reach the age of seventy years, or
become incapacitated to discharge the duties of their office. They shall receive such
compensation as may be fixed by law, which shall not be diminished during their
continuance in office. Until the Congress shall provide otherwise, the Chief Justice of
the Supreme Court shall receive an annual compensation of sixteen thousand
pesos, and each Associate Justice, fifteen thousand pesos.
As already stated construing and applying the above constitutional provision, we
held in the Perfecto case that judicial officers are exempt from the payment of
income tax on their salaries, because the collection thereof by the Government was
a decrease or diminution of their salaries during their continuance in office, a thing
which is expressly prohibited by the Constitution. Thereafter, according to the
Solicitor General, because Congress did not favorably receive the decision in the
Perfecto case, Congress promulgated Republic Act No. 590, if not to counteract the
ruling in that decision, at least now to authorize and legalize the collection of
income tax on the salaries of judicial officers. We quote section 13 of Republic Act
No. 590:
SEC 13. No salary wherever received by any public officer of the Republic of the
Philippines shall be considered as exempt from the income tax, payment of which is
hereby declared not to be dimunition of his compensation fixed by the Constitution
or by law.
So we have this situation. The Supreme Court in a decision interpreting the
Constitution, particularly section 9, Article VIII, has held that judicial officers are
exempt from payment of income tax on their salaries, because the collection
thereof was a diminution of such salaries, specifically prohibited by the Constitution.
Now comes the Legislature and in section 13, Republic Act No. 590, says that "no
salary wherever received by any public officer of the Republic (naturally including a
judicial officer) shall be considered as exempt from the income tax," and proceeds

to declare that payment of said income tax is not a diminution of his compensation.
Can the Legislature validly do this? May the Legislature lawfully declare the
collection of income tax on the salary of a public official, specially a judicial officer,
not a decrease of his salary, after the Supreme Court has found and decided
otherwise? To determine this question, we shall have to go back to the fundamental
principles regarding separation of powers.
Under our system of constitutional government, the Legislative department is
assigned the power to make and enact laws. The Executive department is charged
with the execution of carrying out of the provisions of said laws. But the
interpretation and application of said laws belong exclusively to the Judicial
department. And this authority to interpret and apply the laws extends to the
Constitution. Before the courts can determine whether a law is constitutional or not,
it will have to interpret and ascertain the meaning not only of said law, but also of
the pertinent portion of the Constitution in order to decide whether there is a
conflict between the two, because if there is, then the law will have to give way and
has to be declared invalid and unconstitutional.
Defining and interpreting the law is a judicial function and the legislative branch
may not limit or restrict the power granted to the courts by the Constitution. (Bandy
vs. Mickelson et al., 44N. W., 2nd 341, 342.)
When it is clear that a statute transgresses the authority vested in the legislature by
the Constitution, it is the duty of the courts to declare the act unconstitutional
because they cannot shrink from it without violating their oaths of office. This duty
of the courts to maintain the Constitution as the fundamental law of the state is
imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is
in violation of the fundamental law, the courts must so adjudge and thereby give
effect to the Constitution. Any other course would lead to the destruction of the
Constitution. Since the question as to the constitutionality of a statute is a judicial
matter, the courts will not decline the exercise of jurisdiction upon the suggestion
that action might be taken by political agencies in disregard of the judgment of the
judicial tribunals. (11 Am. Jur., 714-715.)
Under the American system of constitutional government, among the most
important functions in trusted to the judiciary are the interpreting of Constitutions
and, as a closely connected power, the determination of whether laws and acts of
the legislature are or are not contrary to the provisions of the Federal and State
Constitutions. (11 Am. Jur., 905.).
By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says
that taxing the salary of a judicial officer is not a decrease of compensation. This is
a clear example of interpretation or ascertainment of the meaning of the phrase
"which shall not be diminished during their continuance in office," found in section
9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act
of interpreting the Constitution or any part thereof by the Legislature is an invasion
of the well-defined and established province and jurisdiction of the Judiciary.

The rule is recognized elsewhere that the legislature cannot pass any declaratory
act, or act declaratory of what the law was before its passage, so as to give it any
binding weight with the courts. A legislative definition of a word as used in a statute
is not conclusive of its meaning as used elsewhere; otherwise, the legislature would
be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis
supplied)
The legislature cannot, upon passing a law which violates a constitutional provision,
validate it so as to prevent an attack thereon in the courts, by a declaration that it
shall be so construed as not to violate the constitutional inhibition. (11 Am. Jur., 919,
emphasis supplied)
We have already said that the Legislature under our form of government is assigned
the task and the power to make and enact laws, but not to interpret them. This is
more true with regard to the interpretation of the basic law, the Constitution, which
is not within the sphere of the Legislative department. If the Legislature may declare
what a law means, or what a specific portion of the Constitution means, especially
after the courts have in actual case ascertain its meaning by interpretation and
applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a
case based on a judicial interpretation of the law of the Constitution may be
undermined or even annulled by a subsequent and different interpretation of the
law or of the Constitution by the Legislative department. That would be neither wise
nor desirable, besides being clearly violative of the fundamental, principles of our
constitutional system of government, particularly those governing the separation of
powers.
So much for the constitutional aspect of the case. Considering the practical side
thereof, we believe that the collection of income tax on a salary is an actual and
evident diminution thereof. Under the old system where the in-come tax was paid at
the end of the year or sometime thereafter, the decrease may not be so apparent
and clear. All that the official who had previously received his full salary was called
upon to do, was to fulfill his obligation and to exercise his privilege of paying his
income tax on his salary. His salary fixed by law was received by him in the amount
of said tax comes from his other sources of income, he may not fully realize the fact
that his salary had been decreased in the amount of said income tax. But under the
present system of withholding the income tax at the source, where the full amount
of the income tax corresponding to his salary is computed in advance and divided
into equal portions corresponding to the number of pay-days during the year and
actually deducted from his salary corresponding to each payday, said official
actually does not receive his salary in full, because the income tax is deducted
therefrom every payday, that is to say, twice a month. Let us take the case of
Justice Endencia. As Associate Justice of the Court of Appeals, his salary is fixed at
p12,000 a year, that is to say, he should receive P1,000 a month or P500 every
payday, fifteenth and end of month. In the present case, the amount collected by
the Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided
by twelve (months) we shall have P145.37 a month. And further dividing it by two
paydays will bring it down to P72.685, which is the income tax deducted form the

collected on his salary each half month. So, if Justice Endencia's salary as a judicial
officer were not exempt from payment of the income tax, instead of receiving P500
every payday, he would be actually receiving P427.31 only, and instead of receiving
P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that
every payday, his salary is actually decreased by P72.685 and every year is
decreased by P1,744.45?
Reading the discussion in the lower House in connection with House Bill No. 1127,
which became Republic Act No. 590, it would seem that one of the main reasons
behind the enactment of the law was the feeling among certain legislators that
members of the Supreme Court should not enjoy any exemption and that as
citizens, out of patriotism and love for their country, they should pay income tax on
their salaries. It might be stated in this connection that the exemption is not
enjoyed by the members of the Supreme Court alone but also by all judicial officers
including Justices of the Court of Appeals and judges of inferior courts. The
exemption also extends to other constitutional officers, like the President of the
Republic, the Auditor General, the members of the Commission on Elections, and
possibly members of the Board of Tax Appeals, commissioners of the Public Service
Commission, and judges of the Court of Industrial Relations. Compares to the
number of all these officials, that of the Supreme Court Justices is relatively
insignificant. There are more than 990 other judicial officers enjoying the
exemption, including 15 Justices of the Court of Appeals, about 107 Judges of First
Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason
behind the exemption in the Constitution, as interpreted by the United States
Federal Supreme Court and this Court, is to preserve the independence of the
Judiciary, not only of this High Tribunal but of the other courts, whose present
membership number more than 990 judicial officials.
The exemption was not primarily intended to benefit judicial officers, but was
grounded on public policy. As said by Justice Van Devanter of the United States
Supreme Court in the case of Evans vs. Gore (253 U. S., 245):
The primary purpose of the prohibition against diminution was not to benefit the
judges, but, like the clause in respect of tenure, to attract good and competent men
to the bench and to promote that independence of action and judgment which is
essential to the maintenance of the guaranties, limitations and pervading principles
of the Constitution and to the administration of justice without respect to person
and with equal concern for the poor and the rich. Such being its purpose, it is to be
construed, not as a private grant, but as a limitation imposed in the public interest;
in other words, not restrictively, but in accord with its spirit and the principle on
which it proceeds.
Having in mind the limited number of judicial officers in the Philippines enjoying this
exemption, especially when the great bulk thereof are justices of the peace, many
of them receiving as low as P200 a month, and considering further the other
exemptions allowed by the income tax law, such as P3,000 for a married person and
P600 for each dependent, the amount of national revenue to be derived from
income tax on the salaries of judicial officers, were if not for the constitutional

exemption, could not be large or substantial. But even if it were otherwise, it should
not affect, much less outweigh the purpose and the considerations that prompted
the establishment of the constitutional exemption. In the same case of Evans vs.
Gore, supra, the Federal Supreme Court declared "that they (fathers of the
Constitution) regarded the independence of the judges as far as greater importance
than any revenue that could come from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for exemption from
payment of income tax on his salary, as a privilege . It is already attached to his
office, provided and secured by the fundamental law, not primarily for his benefit,
but based on public interest, to secure and preserve his independence of judicial
thought and action. When we come to the members of the Supreme Court, this
excemption to them is relatively of short duration. Because of the limited
membership in this High Tribunal, eleven, and due to the high standards of
experience, practice and training required, one generally enters its portals and
comes to join its membership quite late in life, on the aver-age, around his sixtieth
year, and being required to retire at seventy, assuming that he does not die or
become incapacitated earlier, naturally he is not in a position to receive the benefit
of exemption for long. It is rather to the justices of the peace that the exemption
can give more benefit. They are relatively more numerous, and because of the
meager salary they receive, they can less afford to pay the income tax on it and its
diminution by the amount of the income tax if paid would be real, substantial and
onerous.
Considering exemption in the abstract, there is nothing unusual or abhorrent in it,
as long as it is based on public policy or public interest. While all other citizens are
subject to arrest when charged with the commission of a crime, members of the
Senate and House of Representatives except in cases of treason, felony and breach
of the peace are exempt from arrest, during their attendance in the session of the
Legislature; and while all other citizens are generally liable for any speech, remark
or statement, oral or written, tending to cause the dishonor, discredit or contempt
of a natural or juridical person or to blacken the memory of one who is dead,
Senators and Congressmen in making such statements during their sessions are
extended immunity and exemption.
And as to tax exemption, there are not a few citizens who enjoy this exemption.
Persons, natural and juridical, are exempt from taxes on their lands, buildings and
improvements thereon when used exclusively for educational purposes, even if they
derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are
exempted from the payment of taxes on the income or interest they receive
therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic
Act No. 566). Payments or income received by any person residing in the Philippines
under the laws of the United States administered by the United States Veterans
Administration are exempt from taxation. (Republic Act No. 360). Funds received by
officers and enlisted men of the Philippine Army who served in the Armed Forces of
the United States, allowances earned by virtue of such services corresponding to
the taxable years 1942 to 1945, inclusive, are exempted from income tax. (Republic
Act No. 210). The payment of wages and allowances of officers and enlisted men of

the Army Forces of the Philippines sent to Korea are also exempted from taxation.
(Republic Act No. 35). In other words, for reasons of public policy and public interest,
a citizen may justifiably by constitutional provision or statute be exempted from his
ordinary obligation of paying taxes on his income. Under the same public policy and
perhaps for the same it not higher considerations, the framers of the Constitution
deemed it wise and necessary to exempt judicial officers from paying taxes on their
salaries so as not to decrease their compensation, thereby insuring the
independence of the Judiciary.
In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer,
supra, to the effect that the collection of income tax on the salary of a judicial
officer is a diminution thereof and so violates the Constitution. We further hold that
the interpretation and application of the Constitution and of statutes is within the
exclusive province and jurisdiction of the Judicial department, and that in enacting a
law, the Legislature may not legally provide therein that it be interpreted in such a
way that it may not violate a Constitutional prohibition, thereby tying the hands of
the courts in their task of later interpreting said statute, specially when the
interpretation sought and provided in said statute runs counter to a previous
interpretation already given in a case by the highest court of the land.
In the views of the foregoing considerations, the decision appealed from is hereby
affirmed, with no pronouncement as to costs.
Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.
7. NITAFAN V CIR
G.R. No. 78780
July 23, 1987
DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR.,

petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME
COURT OF THE PHILIPPINES, respondents.
RESOLUTION
MELENCIO-HERRERA, J.:
Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19
and 53, respectively, of the Regional Trial Court, National Capital Judicial Region, all
with stations in Manila, seek to prohibit and/or perpetually enjoin respondents, the
Commissioner of Internal Revenue and the Financial Officer of the Supreme Court,
from making any deduction of withholding taxes from their salaries.
In a nutshell, they submit that "any tax withheld from their emoluments or
compensation as judicial officers constitutes a decrease or diminution of their
salaries, contrary to the provision of Section 10, Article VIII of the 1987 Constitution
mandating that "(d)uring their continuance in office, their salary shall not be
decreased," even as it is anathema to the Ideal of an independent judiciary
envisioned in and by said Constitution."
It may be pointed out that, early on, the Court
administratively in response to representations that
Officer to discontinue the withholding of taxes from
Bench. Thus, on June 4, 1987, the Court en banc had
directive as follows:
had dealt with the matter

the Court direct its Finance
salaries of members of the
reaffirmed the Chief Justice's
RE: Question of exemption from income taxation. The Court REAFFIRMED the
Chief Justice's previous and standing directive to the Fiscal Management and Budget
Office of this Court to continue with the deduction of the withholding taxes from the
salaries of the Justices of the Supreme Court as well as from the salaries of all other
members of the judiciary.
That should have resolved the question. However, with the filing of this petition, the
Court has deemed it best to settle the legal issue raised through this judicial

pronouncement. As will be shown hereinafter, the clear intent of the Constitutional
Commission was to delete the proposed express grant of exemption from payment
of income tax to members of the Judiciary, so as to "give substance to equality
among the three branches of Government" in the words of Commissioner Rigos. In
the course of the deliberations, it was further expressly made clear, specially with
regard to Commissioner Joaquin F. Bernas' accepted amendment to the amendment
of Commissioner Rigos, that the salaries of members of the Judiciary would be
subject to the general income tax applied to all taxpayers.
This intent was somehow and inadvertently not clearly set forth in the final text of
the Constitution as approved and ratified in February, 1987 (infra, pp. 7-8). Although
the intent may have been obscured by the failure to include in the General
Provisions a proscription against exemption of any public officer or employee,
including constitutional officers, from payment of income tax, the Court since then
has authorized the continuation of the deduction of the withholding tax from the
salaries of the members of the Supreme Court, as well as from the salaries of all
other members of the Judiciary. The Court hereby makes of record that it had then
discarded the ruling in Perfectovs. Meer and Endencia vs.David, infra, that declared
the salaries of members of the Judiciary exempt from payment of the income tax
and considered such payment as a diminution of their salaries during their
continuance in office. The Court hereby reiterates that the salaries of Justices and
Judges are properly subject to a general income tax law applicable to all income
earners and that the payment of such income tax by Justices and Judges does not
fall within the constitutional protection against decrease of their salaries during
their continuance in office.
A comparison of the Constitutional provisions involved is called for. The 1935
Constitution provided:
... (The members of the Supreme Court and all judges of inferior courts) shall
receive such compensation as may be fixed by law, which shall not be diminished
during their continuance in office ... 1 (Emphasis supplied).
Under the 1973 Constitution, the same provision read:
The salary of the Chief Justice and of the Associate Justices of the Supreme court,
and of judges of inferior courts shall be fixed by law, which shall not be decreased
during their continuance in office. ... 2 (Emphasis ours).
And in respect of income tax exemption, another provision in the same 1973
Constitution specifically stipulated:
No salary or any form of emolument of any public officer or employee, including
constitutional officers, shall be exempt from payment of income tax. 3
The provision in the 1987 Constitution, which petitioners rely on, reads:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court,
and of judges of lower courts shall be fixed by law. During their continuance in
office, their salary shall not be decreased. 4(Emphasis supplied).

The 1987 Constitution does not contain a provision similar to Section 6, Article XV of
the 1973 Constitution, for which reason, petitioners claim that the intent of the
framers is to revert to the original concept of "non-diminution "of salaries of judicial
officers.
The deliberations of the 1986 Constitutional Commission relevant to Section 10,
Article VIII, negate such contention.
The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:
Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme
Court and of judges of the lower courts shall be fixed by law. During their
continuance in office, their salary shall not be diminished nor subjected to income
tax. Until the National Assembly shall provide otherwise, the Chief Justice shall
receive an annual salary of _____________ and each Associate Justice ______________
pesos. 5(Emphasis ours)
During the debates on the draft Article (Committee Report No. 18), two
Commissioners presented their objections to the provision on tax exemption, thus:
MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices,
does this not violate the principle of the uniformity of taxation and the principle of
equal protection of the law? After all, tax is levied not on the salary but on the
combined income, such that when the judge receives a salary and it is comingled
with the other income, we tax the income, not the salary. Why do we have to give
special privileges to the salary of justices?
MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or
decrease of their salary during their term. This is an indirect way of decreasing their
salary and affecting the independence of the judges.
MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but
the special privilege on taxation might, in effect, be a violation of the principle of
uniformity in taxation and the equal protection clause. 6
x xxxxxxxx
MR. OPLE. x xx
Of course, we share deeply the concern expressed by the sponsor, Commissioner
Roberto Concepcion, for whom we have the highest respect, to surround the
Supreme Court and the judicial system as a whole with the whole armor of defense
against the executive and legislative invasion of their independence. But in so
doing, some of the citizens outside, especially the humble government employees,
might say that in trying to erect a bastion of justice, we might end up with the
fortress of privileges, an island of extra territoriality under the Republic of the
Philippines, because a good number of powers and rights accorded to the Judiciary
here may not be enjoyed in the remotest degree by other employees of the
government.

An example is the exception from income tax, which is a kind of economic
immunity, which is, of course, denied to the entire executive department and the
legislative. 7
And during the period of amendments on the draft Article, on July 14, 1986,
Commissioner Cirilo A. Rigos proposed that the term "diminished" be changed to
"decreased" and that the words "nor subjected to income tax" be deleted so as to
"give substance to equality among the three branches in the government.
Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary,
defended the original draft and referred to the ruling of this Court in Perfecto vs.
Meer 8 that "the independence of the judges is of far greater importance than any
revenue that could come from taxing their salaries." Commissioner Rigos then
moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up
"in support of an amendment to the amendment with the request for a modification
of the amendment," as follows:
FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying
that it is not enough to drop the phrase "shall not be subjected to income tax,"
because if that is all that the Gentleman will do, then he will just fall back on the
decision in Perfecto vs. Meer and in Dencia vs. David [should be Endencia and Jugo
vs. David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I
would propose that the statement will read: "During their continuance in office, their
salary shall not be diminished BUT MAY BE SUBJECT TO GENERAL INCOME TAX."IN
support of this position, I would say that the argument seems to be that the justice
and judges should not be subjected to income tax because they already gave up the
income from their practice. That is true also of Cabinet members and all other
employees. And I know right now, for instance, there are many people who have
accepted employment in the government involving a reduction of income and yet
are still subject to income tax. So, they are not the only citizens whose income is
reduced by accepting service in government.
Commissioner Rigos accepted the proposed amendment to the amendment.
Commissioner Rustico F. de los Reyes, Jr. then moved for a suspension of the
session. Upon resumption, Commissioner Bernas announced:
During the suspension, we came to an understanding with the original proponent,
Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During
their continuance in office, their salary shall not be DECREASED."But this is on the
understanding that there will be a provision in the Constitution similar to Section 6
of Article XV, the General Provisions of the 1973 Constitution, which says:
No salary or any form of emolument of any public officer or employee,
including constitutional officers, shall be exempt from payment of income tax.
So, we put a period (.) after "DECREASED" on the understanding that the salary of
justices is subject to tax.
When queried about the specific Article in the General Provisions on non-exemption
from tax of salaries of public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General
Provisions. But at any rate, when we put a period (.) after "DECREASED," it is on the
understanding that the doctrine in Perfecto vs. Meer and Dencia vs. David will not
apply anymore.
The amendment to the original draft, as discussed and understood, was finally
approved without objection.
THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there
will be a provision under the Article on General Provisions. Could Commissioner
Rosario Braid kindly take note that the salaries of officials of the government
including constitutional officers shall not be exempt from income tax? The
amendment proposed herein and accepted by the Committee now reads as follows:
"During their continuance in office, their salary shall not be DECREASED"; and the
phrase "nor subjected to income tax" is deleted. 9
The debates, interpellations and opinions expressed regarding the constitutional
provision in question until it was finally approved by the Commission disclosed that
the true intent of the framers of the 1987 Constitution, in adopting it, was to make
the salaries of members of the Judiciary taxable. The ascertainment of that intent is
but in keeping with the fundamental principle of constitutional construction that the
intent of the framers of the organic law and of the people adopting it should be
given effect.10 The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the people in
the adoption of the Constitution. 11 it may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation offered by the
framers.121avvphi1
Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for
clarity, is again reproduced hereunder:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court,
and of judges of lower courts shall be fixed by law. During their continuance in
office, their salary shall not be decreased. (Emphasis supplied).
it is plain that the Constitution authorizes Congress to pass a law fixing another rate
of compensation of Justices and Judges but such rate must be higher than that
which they are receiving at the time of enactment, or if lower, it would be applicable
only to those appointed after its approval. It would be a strained construction to
read into the provision an exemption from taxation in the light of the discussion in
the Constitutional Commission.
With the foregoing interpretation, and as stated heretofore, the ruling that "the
imposition of income tax upon the salary of judges is a dimunition thereof, and so
violates the Constitution" in Perfecto vs. Meer,13 as affirmed inEndencia vs. David 14
must be declared discarded. The framers of the fundamental law, as the alter ego of
the people, have expressed in clear and unmistakable terms the meaning and
import of Section 10, Article VIII, of the 1987 Constitution that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the
discussions and deliberations of their representatives, in the spirit that all citizens
should bear their aliquot part of the cost of maintaining the government and should
share the burden of general income taxation equitably.
WHEREFORE, the instant petition for Prohibition is hereby dismissed.
8. REPUBLIC V SB
[G.R. No. 104768. July 21, 2003]
Republic of the Philippines, petitioner,vs. Sandiganbayan, Major General
Josephus Q. Ramas and Elizabeth Dimaano, respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the
Resolutions of the Sandiganbayan (First Division) [1] dated 18 November 1991 and 25
March 1992 in Civil Case No. 0037. The first Resolution dismissed petitioners
Amended Complaint and ordered the return of the confiscated items to respondent
Elizabeth Dimaano, while the second Resolution denied petitioners Motion for
Reconsideration.Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the Sandiganbayan

(First Division) for further proceedings allowing petitioner to complete the
presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1 (EO No.
1) creating the Presidential Commission on Good Government (PCGG). EO No. 1
primarily tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates. EO No. 1 vested the PCGG with the power (a) to conduct investigation as
may be necessary in order to accomplish and carry out the purposes of this order
and the power (h) to promulgate such rules and regulations as may be necessary to
carry out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to
investigate reports of unexplained wealth and corrupt practices by AFP personnel,
whether in the active service or retired.[2]
Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas (Ramas). On 27
July 1987, the AFP Board issued a Resolution on its findings and recommendation on
the reported unexplained wealth of Ramas. The relevant part of the Resolution
reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot
located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and
lot located in Cebu City. The lot has an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly at
P700,000.00.
The equipment/items and communication facilities which were found in the
premises of Elizabeth Dimaano and were confiscated by elements of the PC
Command of Batangas were all covered by invoice receipt in the name of CAPT.
EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have been in
the possession of Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the
raiding team was also able to confiscate money in the amount of P2,870,000.00 and
$50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command,
Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga,
Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the

residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGenRamas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth. Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna,
the existence and ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for
scrutiny and analysis by the Boards consultant. Although the amount of
P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed that
respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00
and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted
and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property. [3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic
Act No. 1379 (RA No. 1379) [4] against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I.
Chavez filed an Amended Complaint naming the Republic of the Philippines
(petitioner), represented by the PCGG, as plaintiff and Ramas as defendant. The
Amended Complaint also impleaded Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of
the Philippine Army until 1986. On the other hand, Dimaano was a confidential
agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist at the
office of Ramas from 1 January 1978 to February 1979. The Amended Complaint
further alleged that Ramas acquired funds, assets and properties manifestly out of
proportion to his salary as an army officer and his other income from legitimately

acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the Philippines
and as a subordinate and close associate of the deposed President Ferdinand
Marcos.[5]
The Amended Complaint also alleged that the AFP Board, after a previous
inquiry, found reasonable ground to believe that respondents have violated RA No.
1379.[6] The Amended Complaint prayed for, among others, the forfeiture of
respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and
Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas
contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of proportion to his
salary and other legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items confiscated from the
house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November 1978
only, Dimaano claimed ownership of the monies, communications equipment,
jewelry and land titles taken from her house by the Philippine Constabulary raiding
team.
After termination of the pre-trial,[7] the court set the case for trial on the merits
on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its
lack of preparation for trial and the absence of witnesses and vital documents to
support its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in
order to charge the delinquent properties with being subject to forfeiture as having
been unlawfully acquired by defendant Dimaano alone x xx. [8]
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded
with petitioners presentation of evidence on the ground that the motion for leave to
amend complaint did not state when petitioner would file the amended complaint.
The Sandiganbayan further stated that the subject matter of the amended
complaint was on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had been pending in
court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of
the trial.
On 28 September 1989, during the continuation of the trial, petitioner
manifested its inability to proceed to trial because of the absence of other witnesses
or lack of further evidence to present. Instead, petitioner reiterated its motion to
amend the complaint to conform to the evidence already presented or to change

the averments to show that Dimaano alone unlawfully acquired the monies or
properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over
a year mainly because of its many postponements. Moreover, petitioner would want
the case to revert to its preliminary stage when in fact the case had long been
ready for trial. The Sandiganbayan ordered petitioner to prepare for presentation of
its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to
present further evidence. Giving petitioner one more chance to present further
evidence or to amend the complaint to conform to its evidence, the Sandiganbayan
reset the trial to 18 May 1990. The Sandiganbayan, however, hinted that the resetting was without prejudice to any action that private respondents might take
under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to
trial because it had no further evidence to present. Again, in the interest of justice,
the Sandiganbayan granted petitioner 60 days within which to file an appropriate
pleading. The Sandiganbayan, however, warned petitioner that failure to act would
constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino.[9] The Court held in Migrino that the PCGG does not have jurisdiction to
investigate and prosecute military officers by reason of mere position held without a
showing that they are subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,
without pronouncement as to costs. The counterclaims are likewise dismissed for
lack of merit, but the confiscated sum of money, communications equipment,
jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases under R.A. No.
1379, for such appropriate action as the evidence warrants. This case is also
referred to the Commissioner of the Bureau of Internal Revenue for a determination
of any tax liability of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the
Motion for Reconsideration.
Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following
grounds:
(1.) The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan[10] and Republic v. Migrino[11]
which involve the same issues.
(2.) No previous inquiry similar to preliminary investigations in criminal cases
was conducted against Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie
case against him.
(4.) There was an illegal search and seizure of the items confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE
AND THAT THERE WAS NO SHOWING OF CONSPIRACY,
COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY
BY AND BETWEEN RESPONDENT RAMAS AND RESPONDENT
DIMAANO
NOTWITHSTANDING
THE
FACT
THAT
SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE,
HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF
THE ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT,
SHOULD BE STRUCK OUT IN LINE WITH THE RULINGS OF THE
SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA
474
AND
REPUBLIC
v.
MIGRINO,
189
SCRA
289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in
Civil Case No. 0037 was cured and/or waived by
respondents with the filing of their respective answers
with counterclaim; and
3. The separate motions to dismiss were evidently improper
considering that they were filed after commencement of
the presentation of the evidence of the petitioner and
even before the latter was allowed to formally offer its
evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.[12]
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in
Cruz, Jr. v. Sandiganbayan[13] and Republic v. Migrino.[14]
The primary issue for resolution is whether the PCGG has the jurisdiction to
investigate and cause the filing of a forfeiture petition against Ramas and Dimaano
for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and
corrupt practices of AFP personnel, whether in the active service or retired. [15] The
PCGG tasked the AFP Board to make the necessary recommendations to appropriate
government agencies on the action to be taken based on its findings. [16] The PCGG
gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of EO
No. 1 to conduct investigation as may be necessary in order to accomplish and to
carry out the purposes of this order. EO No. 1 gave the PCGG specific
responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates, whether located in the Philippines or abroad,
including the takeover and sequestration of all business enterprises
and entities owned or controlled by them, during his administration,
directly or through nominees, by taking undue advantage of their
public office and/ or using their powers, authority, influence,
connections or relationship.
(b) The investigation of such cases of graft and corruption as the President
may assign to the Commission from time to time.
x xx.
The PCGG, through the AFP Board, can only investigate the unexplained wealth
and corrupt practices of AFP personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former President Marcos
by being the latters immediate family, relative, subordinate or close associate,

taking undue advantage of their public office or using their powers, influence x xx;
[17]
or (2) AFP personnel involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.[18]
Petitioner, however, does not claim that the President assigned Ramas case to
the PCGG. Therefore, Ramas case should fall under the first category of AFP
personnel before the PCGG could exercise its jurisdiction over him. Petitioner argues
that Ramas was undoubtedly a subordinate of former President Marcos because of
his position as the Commanding General of the Philippine Army. Petitioner claims
that Ramas position enabled him to receive orders directly from his commander-inchief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the
sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that
he enjoyed close association with former President Marcos. Migrino discussed this
issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term subordinate. The Whereas Clauses of EO No. 1
express the urgent need to recover the ill-gotten wealth amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close associates
both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have any interest
or participation.
Applying the rule in statutory construction known as ejusdem generis that is[W]here general words follow an enumeration of persons or things by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of
Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2 nd Ed., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the
immediate family member, relative, and close associate in EO No. 1 and
the close relative, business associate, dummy, agent, or nominee in EO
No. 2.
x xx
It does not suffice, as in this case, that the respondent is or was a government
official or employee during the administration of former President Marcos. There
must be a prima facie showing that the respondent unlawfully

accumulated wealth by virtue of his close association or relation with
former Pres. Marcos and/or his wife. (Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the
rank of Major General[19] does not suffice to make him a subordinate of former
President Marcos for purposes of EO No. 1 and its amendments. The PCGG has to
provide a prima facie showing that Ramas was a close associate of former President
Marcos, in the same manner that business associates, dummies, agents or
nominees of former President Marcos were close to him.Such close association is
manifested either by Ramas complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by former President
Marcos acquiescence in Ramas own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board Resolution in
the instant case states that the AFP Board conducted the investigation pursuant to
EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is
a presumption that the PCGG was acting within its jurisdiction of investigating
crony-related cases of graft and corruption and that Ramas was truly a subordinate
of the former President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with the
following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted
and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property. [20]
Thus, although the PCGG sought to investigate and prosecute private respondents
under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic
Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This
absence of relation to EO No. 1 and its amendments proves fatal to petitioners case.
EO No. 1 created the PCGG for a specific and limited purpose, and necessarily its
powers must be construed to addresssuch specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do
not show that the properties Ramas allegedly owned were accumulated by him in
his capacity as a subordinate of his commander-in-chief. Petitioner merely
enumerated the properties Ramas allegedly owned and suggested that these
properties were disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association with former
President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not
contain a finding that Ramas accumulated his wealth because of his close
association with former President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New
Armed Forces of the Philippines did not categorically find a prima facie
evidence showing that respondent Ramas unlawfully accumulated wealth
by virtue of his close association or relation with former President Marcos
and/or his wife, it is submitted that such omission was not fatal. The
resolution of the Anti-Graft Board should be read in the context of the law creating
the same and the objective of the investigation which was, as stated in the above,
pursuant to Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1,
2, 14 and 14-a;[21] (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie
showing that the ill-gotten wealth was accumulated by a subordinate of former
President Marcos that vests jurisdiction on PCGG. EO No. 1 [22] clearly premises the
creation of the PCGG on the urgent need to recover all ill-gotten wealth amassed by
former President Marcos, his immediate family, relatives, subordinates and close
associates.Therefore, to say that such omission was not fatal is clearly contrary to
the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under
the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, [24] 14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the recovery of
ill-gotten wealth under Republic Act No. 1379, accumulated by
former President Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the take-over or sequestration of all
business enterprises and entities owned or controlled by them, during
his administration, directly or through his nominees, by taking undue
advantage of their public office and/or using their powers,
authority and influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed in the
acquisition of said ill-gotten wealth as contemplated under Section 2(a)
of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous
authority of the President for the respondent PCGG to investigate and
prosecute in accordance with Section 2 (b) of Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the Ombudsman and
other duly authorized investigating agencies such as the provincial and
city prosecutors, their assistants, the Chief State Prosecutor and his
assistants and the state prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments. The
preliminary investigation of unexplained wealth amassed on or before 25 February
1986 falls under the jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General. [27] The Ombudsman
Act or Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman the power to
conduct preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986. [28]
After the pronouncements of the Court in Cruz, the PCGG still pursued this case
despite the absence of a prima facie finding that Ramas was a subordinate of
former President Marcos. The petition for forfeiture filed with the Sandiganbayan
should be dismissed for lack of authority by the PCGG to investigate respondents
since there is no prima facie showing that EO No. 1 and its amendments apply to
respondents. The AFP Board Resolution and even the Amended Complaint state that
there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases. As stated
in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause
the prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379,
the PCGG must also be enjoined from proceeding with the case, without prejudice to
any action that may be taken by the proper prosecutory agency. The rule of law
mandates that an agency of government be allowed to exercise only the powers
granted to it.
Petitioners argument that private respondents have waived any defect in the
filing of the forfeiture petition by submitting their respective Answers with
counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no
jurisdiction to waive in the first place. The PCGG cannot exercise investigative or
prosecutorial powers never granted to it. PCGGs powers are specific and limited.
Unless given additional assignment by the President, PCGGs sole task is only to
recover the ill-gotten wealth of the Marcoses, their relatives and cronies. [29] Without
these elements, the PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon as
they learned of the pronouncement of the Court in Migrino. This case was decided
on 30 August 1990, which explains why private respondents only filed their Motion
to Dismiss on 8 October 1990. Nevertheless, we have held that the parties may
raise lack of jurisdiction at any stage of the proceeding. [30] Thus, we hold that there
was no waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the
parties to an action.[31]
Consequently, the petition should be dismissed for lack of jurisdiction by the
PCGG to conduct the preliminary investigation. The Ombudsman may still conduct

the proper preliminary investigation for violation of RA No. 1379, and if warranted,
the Solicitor General may file the forfeiture petition with the Sandiganbayan. [32] The
right of the State to forfeit unexplained wealth under RA No. 1379 is not subject to
prescription, laches or estoppel.[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case
before completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we
find that petitioner has only itself to blame for non-completion of the presentation of
its evidence. First, this case has been pending for four years before the
Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11 August
1987, and only began to present its evidence on 17 April 1989. Petitioner had
almost two years to prepare its evidence. However, despite this sufficient time,
petitioner still delayed the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions. Even before the date set for
the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for
Leave to Amend the Complaint.[34] The motion sought to charge the delinquent
properties (which comprise most of petitioners evidence) with being subject to
forfeiture as having been unlawfully acquired by defendant Dimaano alone x xx.
The Sandiganbayan, however, refused to defer the presentation of petitioners
evidence since petitioner did not state when it would file the amended complaint.
On 18 April 1989, the Sandiganbayan set the continuation of the presentation of
evidence on 28-29 September and 9-11 October 1989, giving petitioner ample time
to prepare its evidence. Still, on 28 September 1989, petitioner manifested its
inability to proceed with the presentation of its evidence. The Sandiganbayan issued
an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay
hereon has been due to the inability of the government to produce on scheduled
dates for pre-trial and for trial documents and witnesses, allegedly upon the failure
of the military to supply them for the preparation of the presentation of evidence
thereon. Of equal interest is the fact that this Court has been held to task in public
about its alleged failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today, this Court is now
faced with a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate action could have
been undertaken by the plaintiff Republic. [35]
On 9 October 1989, the PCGG manifested in court that it was conducting a
preliminary investigation on the unexplained wealth of private respondents as
mandated by RA No. 1379.[36] The PCGG prayed for an additional four months to

conduct the preliminary investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March 1990. However, on the
scheduled date, petitioner failed to inform the court of the result of the preliminary
investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and to
inform the court of what lies ahead insofar as the status of the case is concerned x
xx.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended Complaint. [38] The Sandiganbayan
correctly observed that a case already pending for years would revert to its
preliminary stage if the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for
failure to complete the presentation of its evidence. The Sandiganbayan gave
petitioner more than sufficient time to finish the presentation of its evidence. The
Sandiganbayan overlooked petitioners delays and yet petitioner ended the longstring of delays with the filing of a Re-Amended Complaint, which would only
prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate
and prosecute the case against private respondents. This alone would have been
sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against
private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before
completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties
confiscated from Dimaanos house as illegally seized and therefore inadmissible in
evidence. This issue bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against private respondents.
Petitioner will not have much evidence to support its case against private
respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence
a search warrant captioned Illegal Possession of Firearms and Ammunition. Dimaano
was not present during the raid but Dimaanos cousins witnessed the raid. The
raiding team seized the items detailed in the seizure receipt together with other
items not included in the search warrant. The raiding team seized these items: one
baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol,
caliber .45; communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the successful
EDSA revolution.[39] Petitioner argues that a revolutionary government was operative
at that time by virtue of Proclamation No. 1 announcing that President Aquino and

Vice President Laurel were taking power in the name and by the will of the Filipino
people.[40] Petitioner asserts that the revolutionary government effectively withheld
the operation of the 1973 Constitution which guaranteed private respondents
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal
search applies only beginning 2 February 1987, the date of ratification of the 1987
Constitution. Petitioner contends that all rights under the Bill of Rights had already
reverted to its embryonic stage at the time of the search. Therefore, the
government may confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure, private respondents
did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in
President Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution
was done in defiance of the provisions of the 1973 Constitution.[41] The
resulting government was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the revolutionary
government, as thede jure government in the Philippines, assumed under
international law.
The correct issues are: (1) whether the revolutionary government was bound by
the Bill of Rights of the 1973 Constitution during the interregnum, that is, after the
actual and effective take-over of power by the revolutionary government following
the cessation of resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution); and (2) whether the protection
accorded to individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights (Declaration) remained
in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to
individuals under the Covenant and the Declaration remained in effect during the
interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the extent and
scope of such directives and orders. With the abrogation of the 1973 Constitution by
the successful revolution, there was no municipal law higher than the directives and
orders of the revolutionary government. Thus, during the interregnum, a person
could not invoke any exclusionary right under a Bill of Rights because there was
neither a constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:[42]
A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it or as
a sudden, radical and fundamental change in the government or political system,

usually effected with violence or at least some acts of violence. In Kelsen's book,
General Theory of Law and State, it is defined as that which occurs whenever the
legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself.
It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect
radical reforms in their system of government or institutions by force or a general
uprising when the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable. It has been said that
the locus of positive law-making power lies with the people of the state and from
there is derived the right of the people to abolish, to reform and to alter any existing
form of government without regard to the existing constitution.
x xx
It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the
provisions of the 1973 Constitution as a BatasangPambansa resolution
had earlier declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs. Aquinos Government
which was met by little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the administration, the
departure of the Marcos Cabinet officials, revamp of the Judiciary and the Military
signaled the pointwhere the legal system then in effect, had ceased to be
obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative
during the interregnum would render void all sequestration orders issued by the
Philippine Commission on Good Government (PCGG) before the adoption of the
Freedom Constitution. The sequestration orders, which direct the freezing and even
the take-over of private property by mere executive issuance without judicial action,
would violate the due process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly question
the sequestration orders as violative of the Bill of Rights because there was no Bill
of Rights during the interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration orders as
contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission
on Good Government,[43] petitioner Baseco, while conceding there was no Bill of
Rights during the interregnum, questioned the continued validity of the

sequestration orders upon adoption of the Freedom Constitution in view of the due
process clause in its Bill of Rights. The Court ruled that the Freedom Constitution,
and later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty
of the President to enact measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already adverted to,
Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the authority
to issue sequestration or freeze orders under Proclamation No. 3 dated March 25,
1986.
The framers of both the Freedom Constitution and the 1987 Constitution were
fully aware that the sequestration orders would clash with the Bill of Rights. Thus,
the framers of both constitutions had to include specific language recognizing the
validity of the sequestration orders. The following discourse by Commissioner
Joaquin G. Bernas during the deliberations of the Constitutional Commission is
instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio
Araneta University Foundation, of which all of us have been given a copy. On the
one hand, he argues that everything the Commission is doing is traditionally
legal. This is repeated by Commissioner Romulo also. Minister Salonga spends a
major portion of his lecture developing that argument. On the other hand,
almost as an afterthought, he says that in the end what matters are the results
and not the legal niceties, thus suggesting that the PCGG should be allowed to
make some legal shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for
special protection? The answer is clear. What they are doing will not stand
the test of ordinary due process, hence they are asking for protection,
for exceptions.Grandesmalos, grandesremedios, fine, as the saying stands,
but let us not say grandesmalos, grande y malosremedios. That is not an
allowable extrapolation. Hence, we should not give the exceptions asked for,
and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM
is to hasten constitutional normalization. Very much at the heart of the
constitutional normalization is the full effectivity of the Bill of Rights. We cannot,
in one breath, ask for constitutional normalization and at the same time ask for

a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word for
that is backsliding. It is tragic when we begin to backslide even before we get
there.
Second, this is really a corollary of the first. Habits tend to become ingrained.
The committee report asks for extraordinary exceptions from the Bill of Rights
for six months after the convening of Congress, and Congress may even extend
this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What
the committee report is asking for is that we should allow the new government
to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners
of the vice begin to think that they have a vested right to its practice, and they
will fight tooth and nail to keep the franchise. That would be an unhealthy way
of consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties
is an argument that is very disturbing. When it comes from a staunch Christian
like Commissioner Salonga, a Minister, and repeated verbatim by another
staunch Christian like Commissioner Tingson, it becomes doubly disturbing and
even discombobulating. The argument makes the PCGG an auctioneer, placing
the Bill of Rights on the auction block. If the price is right, the search and
seizure clause will be sold. Open your Swiss bank account to us and we will
award you the search and seizure clause. You can keep it in your private safe.
Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the
ransom price is paid and the ransom price is the Bill of Rights, specifically the
due process in the search and seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not for sale to the highest
bidder nor can it be used to ransom captive dollars. This nation will survive and
grow strong, only if it would become convinced of the values enshrined in the
Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is to
delete all of Section 8 of the committee report and allow the new Constitution to
take effect in full vigor. If Section 8 is deleted, the PCGG has two options. First, it
can pursue the Salonga and the Romulo argument that what the PCGG has been
doing has been completely within the pale of the law. If sustained, the PCGG can
go on and should be able to go on, even without the support of Section 8. If not
sustained, however, the PCGG has only one honorable option, it must bow to
the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with the

law. From his prison cell, Thomas More said, "I'll give the devil benefit of law for
my nations safety sake. I ask the Commission to give the devil benefit of law for
our nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment
excepting sequestration orders from the Bill of Rights, the Constitutional
Commission still adopted the amendment as Section 26, [44] Article XVIII of the 1987
Constitution. The framers of the Constitution were fully aware that absent Section
26, sequestration orders would not stand the test of due process under the Bill of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force
during the interregnum, absent a constitutional provision excepting sequestration
orders from such Bill of Rights, would clearly render all sequestration orders void
during the interregnum. Nevertheless, even during the interregnum the Filipino
people continued to enjoy, under the Covenant and the Declaration, almost the
same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the States good faith compliance with the Covenant to
which the Philippines is a signatory. Article 2(1) of the Covenant requires each
signatory State to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights [45] recognized in the present Covenant. Under
Article 17(1) of the Covenant, the revolutionary government had the duty to insure
that [n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its
Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although the
signatories to the Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as part of the generally
accepted principles of international law and binding on the State. [46] Thus, the
revolutionary government was also obligated under international law to observe the
rights[47] of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary government could
have repudiated all its obligations under the Covenant or the Declaration is another
matter and is not the issue here. Suffice it to say that the Court considers the
Declaration as part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant
or the Declaration in the same way it repudiated the 1973 Constitution. As the de
jure government, the revolutionary government could not escape responsibility for
the States good faith compliance with its treaty obligations under international law.

It was only upon the adoption of the Provisional Constitution on 25 March 1986
that the directives and orders of the revolutionary government became subject to a
higher municipal law that, if contravened, rendered such directives and orders void.
The Provisional Constitution adopted verbatim the Bill of Rights of the 1973
Constitution.[48] The Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers entrusted to it by
the people.
During the interregnum when no constitution or Bill of Rights existed, directives
and orders issued by government officers were valid so long as these officers did
not exceed the authority granted them by the revolutionary government. The
directives and orders should not have also violated the Covenant or the Declaration.
In this case, the revolutionary government presumptively sanctioned the warrant
since the revolutionary government did not repudiate it. The warrant, issued by a
judge upon proper application, specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the
warrant. As admitted by petitioners witnesses, the raiding team confiscated items
not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only for
weapons. What else, aside from the weapons, were seized from the
house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US
dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the
house of Elizabeth Dimaano. Do you know the reason why your team
also seized other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was
informed that the reason why they also brought the other items not
included in the search warrant was because the money and other
jewelries were contained in attach cases and cartons with markings
Sony Trinitron, and I think three (3) vaults or steel safes. Believing that
the attach cases and the steel safes were containing firearms, they
forced open these containers only to find out that they contained
money.
xxx
Q. You said you found money instead of weapons, do you know the reason
why your team seized this money instead of weapons?

A. I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was
already dark and they felt most secured if they will bring that because
they might be suspected also of taking money out of those items, your
Honor.[49]
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case
was applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure
of five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in
the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the
MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the house of
Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant,
any other properties or contraband which could be found in the
residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did
not include that in the application for search warrant considering that
we have not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe
that only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]
xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite
rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court,
with the fiscals office who charged Elizabeth Dimaano for Illegal
Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had
a Memorandum Receipt in the name of FelinoMelegrito, is that not
correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to
bring along also the jewelries and other items, sir. I do not really know
where it was taken but they brought along also these articles. I do not
really know their reason for bringing the same, but I just learned that
these were taken because they might get lost if they will just leave this
behind.
xxx
Q. How about the money seized by your raiding team, they were not also
included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money
was discovered to be contained in attach cases. These attach cases
were suspected to be containing pistols or other high powered
firearms, but in the course of the search the contents turned out to be
money. So the team leader also decided to take this considering that
they believed that if they will just leave the money behind, it might get
lost also.
Q. That holds true also with respect to the other articles that were seized by
your raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were
opened.[51]

It is obvious from the testimony of Captain Sebastian that the warrant did not
include the monies, communications equipment, jewelry and land titles that the
raiding team confiscated. The search warrant did not particularly describe these
items and the raiding team confiscated them on its own authority. The raiding team
had no legal basis to seize these items without showing that these items could be
the subject of warrantless search and seizure. [52] Clearly, the raiding team exceeded
its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are
contraband per se,[53] and they are not, they must be returned to the person from
whom the raiding seized them. However, we do not declare that such person is the
lawful owner of these items, merely that the search and seizure warrant could not
be used as basis to seize and withhold these items from the possessor. We thus hold
that these items should be returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in
Civil Case No. 0037, remanding the records of this case to the Ombudsman for such
appropriate action as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano, are AFFIRMED.
SEPARATE OPINION
PUNO, J.:
While I concur in the result of the ponencia of Mr. Justice Carpio, the ruling on
whether or not private respondent Dimaano could invoke her rights against
unreasonable search and seizure and to the exclusion of evidence resulting
therefrom compels this humble opinion. The ponencia states that (t)he correct issue
is whether the Bill of Rights was operative during the interregnum from February 26,
1986 (the day Corazon C. Aquino took her oath as President) to March 24, 1986
(immediately before the adoption of the Freedom Constitution). [1] The majority holds
that the Bill of Rights was not operative, thus private respondent Dimaano cannot
invoke the right against unreasonable search and seizure and the exclusionary right
as her house was searched and her properties were seized during the interregnum
or on March 3, 1986. My disagreement is not with the ruling that the Bill of Rights
was not operative at that time, but with the conclusion that the private respondent
has lost and cannot invoke the right against unreasonable search and seizure and
the exclusionary right. Using a different lens in viewing the problem at hand, I
respectfully submit that the crucial issue for resolution is whether she can invoke
these rights in the absence of a constitution under the extraordinary circumstances
after the 1986 EDSA Revolution. The question boggles the intellect, and is
interesting, to say the least, perhaps even to those not half-interested in the law.
But the question of whether the Filipinos were bereft of fundamental rights during
the one month interregnum is not as perplexing as the question of whether the

world was without a God in the three days that God the Son descended into the
dead before He rose to life. Nature abhors a vacuum and so does the law.
I. Prologue
The ponencia suggests that the Constitution, the Bill of Rights in particular, is
the only source of rights, hence in its absence, private respondent Dimaano cannot
invoke her rights against unreasonable search and seizure and to the exclusion of
evidence obtained therefrom. Pushing the ponencias line of reasoning to the
extreme will result in the conclusion that during the one month interregnum, the
people lost their constitutionally guaranteed rights to life, liberty and property and
the revolutionary government was not bound by the strictures of due process of law.
Even before appealing to history and philosophy, reason shouts otherwise.
The ponencia recognized the EDSA Revolution as a successful revolution [2] that
installed the Aquino government. There is no right to revolt in the 1973 Constitution,
in force prior to February 23-25, 1986.Nonetheless, it is widely accepted that under
natural law, the right of revolution is an inherent right of the people. Thus, we
justified the creation of a new legal order after the 1986 EDSA Revolution, viz:
From the natural law point of view, the right of revolution has been defined as an
proved inadequate or are so obstructed as to be unavailable. (H. Black, Handbook of
American Constitutional Law II, 4th edition, 1927) It has been said that the locus of
positive law-making power lies with the people of the state and from there is
derived the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution. (Political Rights as Political
Questions, The Paradox of Luther v. Borden, 100 Harvard Law Review 1125, 1133
[1987])[3]
It is my considered view that under this same natural law, private respondent
Dimaano has a right against unreasonable search and seizure and to exclude
evidence obtained as a consequence of such illegal act. To explain my thesis, I will
first lay down the relevant law before applying it to the facts of the case at bar.
Tracking down the elusive law that will govern the case at bar will take us to the
labyrinths of philosophy and history. To be sure, the difficulty of the case at bar lies
less in the application of the law, but more in finding the applicable law. I shall take
up the challenge even if the route takes negotiating, but without trespassing, on
political and religious thickets.
II. Natural Law and Natural Rights
As early as the Greek civilization, man has alluded to a higher, natural standard
or law to which a state and its laws must conform. Sophocles unmistakably
articulates this in his poignant literary piece,Antigone. In this mid-fifth century
Athenian tragedy, a civil war divided two brothers, one died defending Thebes, and
the other, Polyneices, died attacking it. The king forbade Polyneices burial,

commanding instead that his body be left to be devoured by beasts. But according
to Greek religious ideas, only a burial -even a token one with a handful of earthcould give repose to his soul. Moved by piety, Polyneices sister, Antigone, disobeyed
the command of the king and buried the body. She was arrested. Brought before the
king who asks her if she knew of his command and why she disobeyed, Antigone
replies:
. . .These laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang. [4]
Antigone was condemned to be buried alive for violating the order of the king. [5]
Aristotle also wrote in his Nicomachean Ethics: Of political justice part is natural,
part legal natural, that which everywhere has the same force and does not exist by
peoples thinking this or that; legal, that which is originally indifferent, but when it
has been laid down is not indifferent, e.g. that a prisoners ransom shall be mina, or
that a goat and not two sheep shall be sacrificed, and again all the laws that are
passed for particular cases, . . . [6] Aristotle states that (p)articular law is that which
each community lays down and applies to its own members: this is partly written
and partly unwritten. Universal law is the law of Nature.For there really is, as every
one to some extent divines, a natural justice and injustice that is binding on all men,
even on those who have no association or covenant with each other. It is this that
Sophocles Antigone clearly means when she says that the burial of Polyneices was a
just act in spite of the prohibition: she means that it was just by nature. [7]
Later, the Roman orator Cicero wrote of natural law in the first century B.C. in
this wise:
True law is right reason in agreement with nature; it is of universal application,
unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions. And it does not lay its commands or prohibitions
upon good men in vain, though neither have any effect on the wicked. It is a sin to
try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is
impossible to abolish it entirely. We cannot be freed from its obligations by senate or
people, and we need not look outside ourselves for an expounder or interpreter of it.
And there will not be different laws at Rome and at Athens, or different laws now
and in the future, but one eternal and unchangeable law will be valid for all nations
and at all times, and there will be one master and ruler, that is, God, over us all, for
he is the author of this law, its promulgator, and its enforcing judge. Whoever is

disobedient is fleeing from himself and denying his human nature, and by reason of
this very fact he will suffer the worst penalties, even if he escapes what is
commonly considered punishment.[8]
This allusion to an eternal, higher, and universal natural law continues from
classical antiquity to this day. The face of natural law, however, has changed
throughout the classical, medieval, modern, and contemporary periods of history.
In the medieval times, shortly after 1139, Gratian published the Decretum, a
collection and reconciliation of the canon laws in force, which distinguished between
divine or natural law and human law. Similar to the writings of the earliest Church
Fathers, he related this natural law to the Decalogue and to Christs commandment
of love of ones neighbor. The law of nature is that which is contained in the Law and
the Gospel, by which everyone is commanded to do unto others as he would wish to
be done unto him, and is prohibited from doing unto others that which he would be
unwilling to be done unto himself. [9] This natural law precedes in time and rank all
things, such that statutes whether ecclesiastical or secular, if contrary to law, were
to be held null and void.[10]
The following century saw a shift from a natural law concept that was
revelation-centered to a concept related to mans reason and what was discoverable
by it, under the influence of Aristotles writings which were coming to be known in
the West. William of Auxerre acknowledged the human capacity to recognize good
and evil and Gods will, and made reason the criterion of natural law. Natural law
was thus id quod naturalis ratio sine omnideliberationeaut sine magna dictatesse
faciendum or that which natural reason, without much or even any need of
reflection, tells us what we must do. [11] Similarly, Alexander of Halessaw human
reason as the basis for recognizing natural law [12] and St. Bonaventure wrote that
what natural reason commands is called the natural law. [13] By the thirteenth
century, natural law was understood as the law of right reason, coinciding with the
biblical law but not derived from it.[14]
Of all the medieval philosophers, the Italian St. Thomas Aquinas is indisputably
regarded as the most important proponent of traditional natural law theory. He
created a comprehensive and organized synthesis of the natural law theory which
rests on both the classical (in particular, Aristotelian philosophy) and Christian
foundation, i.e., on reason and revelation. [15] His version of the natural law theory
rests on his vision of the universe as governed by a single, self-consistent and
overarching system of law under the direction and authority of God as the supreme
lawgiver and judge.[16] Aquinas defined law as an ordinance of reason for the
common good, made by him who has care of the community, and promulgated. [17]
There are four kinds of laws in his natural law theory: eternal, natural, human, and
divine.
First, eternal law. To Aquinas, a law is a dictate of practical reason (which
provides practical directions on how one ought to act as opposed to speculative
reason which provides propositional knowledge of the way things are) emanating
from the ruler who governs a perfect community. [18] Presupposing that Divine
Providence rules the universe, and Divine Providence governs by divine reason, then

the rational guidance of things in God the Ruler of the universe has the nature of a
law. And since the divine reasons conception of things is not subject to time but is
eternal, this kind of law is called eternal law. [19] In other words, eternal law is that
law which is a dictate of Gods reason. It is the external aspect of Gods perfect
wisdom, or His wisdom applied to His creation. [20] Eternal law consists of those
principles of action that God implanted in creation to enable each thing to perform
its proper function in the overall order of the universe. The proper function of a
thing determines what is good and bad for it: the good consists of performing its
function while the bad consists of failing to perform it. [21]
Then, natural law. This consists of principles of eternal law which are specific
to human beings as rational creatures. Aquinas explains that law, as a rule and
measure, can be in a person in two ways: in one way, it can be in him that rules and
measures; and in another way, in that which is ruled and measured since a thing is
ruled and measured in so far as it partakes of the rule or measure. Thus, since all
things governed by Divine Providence are regulated and measured by the eternal
law, then all things partake of or participate to a certain extent in the eternal law;
they receive from it certain inclinations towards their proper actions and ends.
Being rational, however, the participation of a human being in the Divine
Providence, is most excellent because he participates in providence itself, providing
for himself and others. He participates in eternal reason itself and through this, he
possesses a natural inclination to right action and right end. This participation of the
rational creature in the eternal law is called natural law. Hence, the psalmist says:
The light of Thy countenance, O Lord, is signed upon us, thus implying that the light
of natural reason, by which we discern what is good and what is evil, which is the
function of the natural law, is nothing else than an imprint on us of the Divine light.
It is therefore evident that the natural law is nothing else than the rational creatures
participation in the eternal law. [22] In a few words, the natural law is a rule of reason,
promulgated by God in mans nature, whereby man can discern how he should act.
[23]
Through natural reason, we are able to distinguish between right and wrong;
through free will, we are able to choose what is right. When we do so, we participate
more fully in the eternal law rather than being merely led blindly to our proper end.
We are able to choose that end and make our compliance with eternal law an act of
self-direction. In this manner, the law becomes in us a rule and measure and no
longer a rule and measure imposed from an external source. [24] The question that
comes to the fore then is what is this end to which natural law directs rational
creatures?
The first self-evident principle of natural law is that good is to be pursued and
done, and evil is to be avoided. All other precepts of the natural law are based upon
this, so that whatever the practical reason naturally apprehends as mans good (or
evil) belongs to the precept of the natural law as something to be done or avoided.
[25]
Because good is to be sought and evil avoided, and good is that which is in
accord with the nature of a given creature or the performance of a creatures proper
function, then the important question to answer is what is human nature or the
proper function of man. Those to which man has a natural inclination are naturally

apprehended by reason as good and must thus be pursued, while their opposites
are evil which must be avoided. [26]Aquinas identifies the basic inclinations of man as
follows:
1. To seek the good, including his highest good, which is eternal happiness with
God.[27]
2. To preserve himself in existence.
3. To preserve the species - that is, to unite sexually.
4. To live in community with other men.
5. To use his intellect and will - that is, to know the truth and to make his own
decision.[28]
As living creatures, we have an interest in self-preservation; as animals, in
procreation; and as rational creatures, in living in society and exercising our
intellectual and spiritual capacities in the pursuit of knowledge. [29] God put these
inclinations in human nature to help man achieve his final end of eternal happiness.
With an understanding of these inclinations in our human nature, we can determine
by practical reason what is good for us and what is bad. [30] In this sense, natural law
is an ordinance of reason.[31] Proceeding from these inclinations, we can apply the
natural law by deduction, thus: good should be done; this action is good; this action
should therefore be done.[32] Concretely, it is good for humans to live peaceably with
one another in society, thus this dictates the prohibition of actions such as killing
and stealing that harm society. [33]
From the precepts of natural law, human reason needs to proceed to the more
particular determinations or specialized regulations to declare what is required in
particular cases considering societys specific circumstances. These particular
determinations, arrived at by human reason, are called human laws (Aquinas
positive law). They are necessary to clarify the demands of natural law. Aquinas
identifies two ways by which something may be derived from natural law: first, like
in science, demonstrated conclusions are drawn from principles; and second, as in
the arts, general forms are particularized as to details like the craftsman
determining the general form of a house to a particular shape. [34] Thus, according to
Aquinas, some things are derived from natural law by way of conclusion (such as
one must not kill may be derived as a conclusion from the principle that one should
do harm to no man) while some are derived by way of determination (such as the
law of nature has it that the evildoer should be punished, but that he be punished in
this or that way is not directly by natural law but is a derived determination of it). [35]
Aquinas says that both these modes of derivation are found in the human law. But
those things derived as a conclusion are contained in human law not as emanating
therefrom exclusively, but having some force also from the natural law. But those
things which are derived in the second manner have no other force than that of
human law.[36]
Finally, there is divine law which is given by God, i.e., the Old Testament and
the New Testament. This is necessary to direct human life for four reasons. First,

through law, man is directed to proper actions towards his proper end. This end,
which is eternal happiness and salvation, is not proportionate to his natural human
power, making it necessary for him to be directed not just by natural and human
law but by divinely given law. Secondly, because of uncertainty in human judgment,
different people form different judgments on human acts, resulting in different and
even contrary laws. So that man may know for certain what he ought to do and
avoid, it was necessary for man to be directed in his proper acts by a God-given law
for it is certain that such law cannot err. Thirdly, human law can only judge the
external actions of persons. However, perfection of virtue consists in man
conducting himself right in both his external acts and in his interior motives. The
divine law thus supervenes to see and judge both dimensions. Fourthly, because
human law cannot punish or forbid all evils, since in aiming to do away with all evils
it would do away with many good things and would hinder the advancement of the
common good necessary for human development, divine law is needed. [37] For
example, if human law forbade backbiting gossip, in order to enforce such a law,
privacy and trust that is necessary between spouses and friends would be severely
restricted. Because the price paid to enforce the law would outweigh the benefits,
gossiping ought to be left to God to be judged and punished. Thus, with divine law,
no evil would remain unforbidden and unpunished. [38]
Aquinas traditional natural law theory has been advocated, recast and restated
by other scholars up to the contemporary period. [39] But clearly, what has had a
pervading and lasting impact on the Western philosophy of law and government,
particularly on that of the United States of America which heavily influenced the
Philippine system of government and constitution, is the modern natural law theory.
In the traditional natural law theory, among which was Aquinas, the emphasis
was placed on moral duties of man -both rulers and subjects- rather than on rights
of the individual citizen. Nevertheless, from this medieval theoretical background
developed modern natural law theories associated with the gradual development in
Europe of modern secular territorial state. These theories increasingly veered away
from medieval theological trappings[40] and gave particular emphasis to the
individual and his natural rights.[41]
One far-reaching school of thought on natural rights emerged with the political
philosophy of the English man, John Locke. In the traditional natural law theory such
as Aquinas, the monarchy was not altogether disfavored because as Aquinas says,
the rule of one man is more useful than the rule of the many to achieve the unity of
peace.[42] Quite different from Aquinas, Locke emphasized that in any form of
government, ultimate sovereignty rested in the people and all legitimate
government was based on the consent of the governed. [43] His political theory was
used to justify resistance to Charles II over the right of succession to the English
throne and the Whig Revolution of 1688-89 by which James II was dethroned and
replaced by William and Mary under terms which weakened the power of the crown
and strengthened the power of the Parliament. [44]
Locke explained his political theory in his major work, Second Treatise of
Government,originally published in 1690,[45] where he adopted the modern view that

human beings enjoyed natural rights in the state of nature, before the formation of
civil or political society. In this state of nature, it is self-evident that all persons are
naturally in a state of perfect freedom to order their actions, and dispose of their
possessions and persons, as they think fit, within the bounds of the law of nature,
without asking leave or depending upon the will of any other man. [46] Likewise, in
the state of nature, it was self-evident that all persons were in a state of equality,
wherein all the power and jurisdiction is reciprocal, no one having more than
another; there being nothing more evident, than that creatures of the same species
and rank, promiscuously born to all the same advantages of nature, and the use of
the same faculties, should also be equal one amongst another without
subordination or subjection . . . [47] Locke quickly added, however, that though all
persons are in a state of liberty, it is not a state of license for the state of nature has
a law of nature to govern it, which obliges every one: and reason, which is that law,
teaches all mankind, who will but consult it, that being all equal and independent,
no one ought to harm another in his life health, liberty, or possessions. . . [48] Locke
also alludes to an omnipotent, and infinitely wise maker whose workmanship they
(mankind) are, made to last during his (the makers) . . .pleasure. [49] In other words,
through reason, with which human beings arrive at the law of nature prescribing
certain moral conduct, each person can realize that he has a natural right and duty
to ensure his own survival and well-being in the world and a related duty to respect
the same right in others, and preserve mankind. [50] Through reason, human beings
are capable of recognizing the need to treat others as free, independent and equal
as all individuals are equally concerned with ensuring their own lives, liberties and
properties.[51] In this state ofnature, the execution of the law of nature is placed in
the hands of every individual who has a right to punish transgressors of the law of
nature to an extent that will hinder its violation. [52] It may be gathered from Lockes
political theory that the rights to life, health, liberty and property are natural rights,
hence each individual has a right to be free from violent death, from arbitrary
restrictions of his person and from theft of his property. [53] In addition, every
individual has a natural right to defend oneself from and punish those who violate
the law of nature.
But although the state of nature is somewhat of an Eden before the fall, there
are two harsh inconveniences in it, as Locke puts them, which adversely affect the
exercise of natural rights. First, natural law being an unwritten code of moral
conduct, it might sometimes be ignored if the personal interests of certain
individuals are involved. Second, without any written laws, and without any
established judges or magistrates, persons may be judges in their own cases and
self-love might make them partial to their side. On the other hand, ill nature,
passion and revenge might make them too harsh to the other side. Hence, nothing
but confusion and disorder will follow. [54] These circumstances make it necessary to
establish and enter a civil society by mutual agreement among the people in the
state of nature, i.e., based on a social contract founded on trust and consent. Locke
writes:
The only way whereby any one divests himself of his natural liberty, and puts on the
bonds of civil society, is by agreeing with other men to join and unite into a

community for their comfortable, safe, and peaceable living one amongst another,
in a secure enjoyment of their properties (used in the broad sense, referring to life,
liberty and property) and a greater security against any, that are not of it. [55]
This collective agreement then culminated in the establishment of a civil
government.
Three important consequences of Lockes theory on the origin of civil
government and its significance to the natural rights of individual subjects should
be noted. First, since it was the precariousness of the individuals enjoyment of his
natural and equal right to life, liberty, and property that justified the establishment
of civil government, then the central, overriding purpose of civil government was to
protect and preserve the individuals natural rights. For just as the formation by
individuals of civil or political society had arisen from their desire to unite for the
mutual Preservation of their Lives, Liberties and Estates, which I (Locke) call by the
general name, Property,[56] so, too, did the same motive underlie - in the second
stage of the social contract - their collective decision to institute civil government. [57]
Locke thus maintains, again using the term property in the broad sense, that, (t)he
great and chief end, therefore, of mens uniting into common-wealths, and putting
themselves under government, is the preservation of their property. [58]Secondly, the
central purpose that has brought a civil government into existence, i.e., the
protection of the individuals natural rights, sets firm limits on the political authority
of the civil government. A government that violates the natural rights of its subjects
has betrayed their trust, vested in it when it was first established, thereby
undermining its own authority and losing its claim to the subjects obedience. Third
and finally, individual subjects have a right of last resort to collectively resist or
rebel against and overthrow a government that has failed to discharge its duty of
protecting the peoples natural rights and has instead abused its powers by acting in
an arbitrary or tyrannical manner. The overthrow of government, however, does not
lead to dissolution of civil society which came into being before the establishment of
civil government.[59]
Lockes ideas, along with other modern natural law and natural rights theories,
have had a profound impact on American political and legal thought. American law
professor Philip Hamburger observes that American natural law scholars generally
agree that natural law consisted of reasoning about humans in the state of nature
(or absence of government) and tend to emphasize that they were reasoning from
the equal freedom of humans and the need of humans to preserve themselves. [60]
As individuals are equally free, they did not have the right to infringe the equal
rights of others; even self-preservation typically required individuals to cooperate so
as to avoid doing unto others what they would not have others do unto them. [61]
With Lockes theory of natural law as foundation, these American scholars agree on
the well-known analysis of how individuals preserved their liberty by forming
government, i.e., that in order to address the insecurity and precariousness of ones
life, liberty and property in the state of nature, individuals, in accordance with the
principle of self-preservation, gave up a portion of their natural liberty to civil
government to enable it to preserve the residue. [62] People must cede to
[government] some of their natural rights, in order to vest it with powers. [63] That

individuals give up a part of their natural rights to secure the rest in the modern
natural law sense is said to be an old hackneyed and well known principle [64] thus:
That Man, on entering into civil society, of necessity, sacrifices a part of his natural
liberty, has been pretty universally taken for granted by writers on government.
They seem, in general, not to have admitted a doubt of the truth of the proposition.
One feels as though it was treading on forbidden ground, to attempt a refutation of
what has been advanced by a Locke, a Bacari[a], and some other writers and
statesmen.[65]
But, while Lockes theory showed the necessity of civil society and government, it
was careful to assert and protect the individuals rights against government
invasion, thus implying a theory of limited government that both restricted the role
of the state to protect the individuals fundamental natural rights to life, liberty and
property and prohibited the state, on moral grounds, from violating those rights. [66]
The natural rights theory, which is the characteristic American interpretation of
natural law, serves as the foundation of the well-entrenched concept of limited
government in the United States. It provides the theoretical basis of the formulation
of limits on political authority vis--vis the superior right of the individual which the
government should preserve.[67]
Lockes ideas undoubtedly influenced Thomas Jefferson, the eminent statesman
and philosopher of the (American) revolution and of the first constitutional order
which free men were permitted to establish. [68]Jefferson espoused Lockes theory that
man is free in the state of nature. But while Locke limited the authority of the state
with the doctrine of natural rights, Jeffersons originality was in his use of this
doctrine as basis for a fundamental law or constitution established by the people. [69]
To obviate the danger that the government would limit natural liberty more than
necessary to afford protection to the governed, thereby becoming a threat to the
very natural liberty it was designed to protect, people had to stipulate in their
constitution which natural rights they sacrificed and which not, as it was important
for them to retain those portions of their natural liberty that were inalienable, that
facilitated the preservation of freedom, or that simply did not need to be sacrificed.
[70]
Two ideas are therefore fundamental in the constitution: one is the regulation of
the form of government and the other, the securing of the liberties of the people. [71]
Thus, the American Constitution may be understood as comprising three elements.
First, it creates the structure and authority of a republican form of government;
second, it provides a division of powers among the different parts of the national
government and the checks and balances of these powers; and third, it inhibits
governments power vis--vis the rights of individuals, rights existent and potential,
patent and latent. These three parts have one prime objective: to uphold the liberty
of the people.[72]
But while the constitution guarantees and protects the fundamental rights of the
people, it should be stressed that it does not create them. As held by many of the
American Revolution patriots, liberties do not result from charters; charters rather
are in the nature of declarations of pre-existing rights. [73] John Adams, one of the
patriots, claimed that natural rights are founded in the frame of human nature,

rooted in the constitution of the intellect and moral world. [74] Thus, it is said of
natural rights vis--vis the constitution:
. . . (t)hey exist before constitutions and independently of them. Constitutions
enumerate such rights and provide against their deprivation or
infringement, but do not create them. It is supposed that all power, all rights,
and all authority are vested in the people before they form or adopt a constitution.
By such an instrument, they create a government, and define and limit the powers
which the constitution is to secure and the government respect. But they do not
thereby invest the citizens of the commonwealth with any natural rights that they
did not before possess.[75] (emphasis supplied)
A constitution is described as follows:
A Constitution is not the beginning of a community, nor the origin of private rights;
it is not the fountain of law, nor the incipient state of government; it is not the
cause, but consequence, of personal and political freedom; it grants no rights to the
people, but is the creature of their power, the instrument of their convenience.
Designed for their protection in the enjoyment of the rights and powers
which they possessed before the Constitution was made, it is but the
framework of the political government, and necessarily based upon the preexisting
condition of laws, rights, habits and modes of thought. There is nothing primitive in
it; it is all derived from a known source. It presupposes an organized society, law,
order, propriety, personal freedom, a love of political liberty, and enough of
cultivated intelligence to know how to guard against the encroachments of tyranny.
[76]
(emphasis supplied)
That Lockes modern natural law and rights theory was influential to those who
framed and ratified the United States constitution and served as its theoretical
foundation is undeniable.[77] In a letter in which George Washington formally
submitted the Constitution to Congress in September 1787, he spoke of the
difficulties of drafting the document in words borrowed from the standard
eighteenth-century natural rights analysis:
Individuals entering into society, must give up a share of liberty to
preserve the rest. The magnitude of the sacrifice must depend as well on
situation and circumstance, as on the object to be obtained. It is at all times difficult
to draw with precision the line between those rights which must be surrendered,
and those which may be reserved . . . . [78] (emphasis supplied)
Natural law is thus to be understood not as a residual source of constitutional rights
but instead, as the reasoning that implied the necessity to sacrifice natural liberty
to government in a written constitution. Natural law and natural rights were
concepts that explained and justified written constitutions. [79]
With the establishment of civil government and a constitution, there arises a
conceptual distinction between natural rights and civil rights, difficult though to
define their scope and delineation. It has been proposed that natural rights are
those rights that appertain to man in right of his existence. [80] These were

fundamental rights endowed by God upon human beings, all those rights of acting
as an individual for his own comfort and happiness, which are not injurious to the
natural rights of others.[81] On the other hand, civil rights are those that appertain to
man in right of his being a member of society. [82] These rights, however, are derived
from the natural rights of individuals since:
Man did not enter into society to become worse off than he was before, nor to have
fewer rights than he had before, but to have those rights better secured. His natural
rights are the foundation of all his rights. [83]
Civil rights, in this sense, were those natural rights particularly rights to security
and protection which by themselves, individuals could not safeguard, rather
requiring the collective support of civil society and government. Thus, it is said:
Every civil right has for its foundation, some natural right pre-existing in the
individual, but to the enjoyment of which his individual power is not, in all cases,
sufficiently competent.[84]
The distinction between natural and civil rights is between that class of natural
rights which man retains after entering into society, and those which he throws into
the common stock as a member of society. [85] The natural rights retained by the
individuals after entering civil society were all the intellectual rights, or rights of the
mind,[86] i.e., the rights to freedom of thought, to freedom of religious belief and to
freedom of expression in its various forms. The individual could exercise these rights
without government assistance, but government has the role of protecting these
natural rights from interference by others and of desisting from itself infringing such
rights. Government should also enable individuals to exercise more effectively the
natural rights they had exchanged for civil rights like the rights to security and
protection - when they entered into civil society. [87]
American natural law scholars in the 1780s and early 1790s occasionally
specified which rights were natural and which were not. On the Lockean assumption
that the state of nature was a condition in which all humans were equally free from
subjugation to one another and had no common superior, American scholars tended
to agree that natural liberty was the freedom of individuals in the state of nature.
[88]
Natural rights were understood to be simply a portion of this undifferentiated
natural liberty and were often broadly categorized as the rights to life, liberty, and
property; or life, liberty and the pursuit of happiness. More specifically, they
identified as natural rights the free exercise of religion, freedom of conscience, [89]
freedom of speech and press, right to self-defense, right to bear arms, right to
assemble and right to ones reputation. [90] In contrast, certain other rights, such as
habeas corpus and jury rights, do not exist in the state of nature, but exist only
under the laws of civil government or the constitution because they are essential for
restraining government.[91] They are called civil rights not only in the sense that they
are protected by constitutions or other laws, but also in the sense that they are
acquired rights which can only exist under civil government. [92]
In his Constitutional Law, Black states that natural rights may be used to
describe those rights which belong to man by virtue of his nature and depend upon

his personality. His existence as an individual human being, clothed with certain
attributes, invested with certain capacities, adapted to certain kind of life, and
possessing a certain moral and physical nature, entitles him, without the aid of law,
to such rights as are necessary to enable him to continue his existence, develop his
faculties, pursue and achieve his destiny. [93] An example of a natural right is the
right to life. In an organized society, natural rights must be protected by law, and
although they owe to the law neither their existence nor their sacredness, yet they
are effective only when recognized and sanctioned by law. [94]Civil rights include
natural rights as they are taken into the sphere of law. However, there are civil
rights which are not natural rights such as the right of trial by jury. This right is not
founded in the nature of man, nor does it depend on personality, but it falls under
the definition of civil rights which are the rights secured by the constitution to all its
citizens or inhabitants not connected with the organization or administration of
government which belong to the domain of political rights. Natural rights are the
same all the world over, though they may not be given the fullest recognition under
all governments. Civil rights which are not natural rights will vary in different states
or countries.[95]
From the foregoing definitions and distinctions, we can gather that the
inclusions in and exclusions from the scope of natural rights and civil rights are not
well-defined. This is understandable because these definitions are derived from the
nature of man which, in its profundity, depth, and fluidity, cannot simply and
completely be grasped and categorized. Thus, phrases such as rights appertain(ing)
to man in right of his existence, or rights which are a portion of mans
undifferentiated natural liberty, broadly categorized as the rights to life, liberty, and
property; or life, liberty and the pursuit of happiness, or rights that belong to man
by virtue of his nature and depend upon his personality serve as guideposts in
identifying a natural right. Nevertheless, although the definitions of natural right
and civil right are not uniform and exact, we can derive from the foregoing
definitions that natural rights exist prior to constitutions, and may be contained in
and guaranteed by them. Once these natural rights enter the constitutional or
statutory sphere, they likewise acquire the character of civil rights in the broad
sense (as opposed to civil rights distinguished from political rights), without being
stripped of their nature as natural rights. There are, however, civil rights which are
not natural rights but are merely created and protected by the constitution or other
law such as the right to a jury trial.
Long after Locke conceived of his ideas of natural rights, civil society, and civil
government, his concept of natural rights continued to flourish in the modern and
contemporary period. About a hundred years after the Treatise of Government,
Lockes natural law and rights theory was restated by the eighteenth-century
political thinker and activist, Thomas Paine. He wrote his classic text, The Rights of
Man, Part 1 where he argued that the central purpose of all governments was to
protect the natural and imprescriptible rights of man. Citing the 1789 French
Declaration of the Rights of Man and of Citizens, Paine identified these rights as the
right to liberty, property, security and resistance of oppression. All other civil and
political rights - such as to limits on government, to freedom to choose a

government, to freedom of speech, and to fair taxation - were derived from those
fundamental natural rights.[96]
Paine inspired and actively assisted the American Revolution and defended the
French Revolution. His views were echoed by the authors of the American and the
French declarations that accompanied these democratic revolutions. [97] The
American Declaration of Independence of July 4, 1776, the revolutionary manifesto
of the thirteen newly-independent states of America that were formerly colonies of
Britain, reads:
We hold these Truths to be self-evident, that all Men are created equal, that they are
endowed by their Creator with certain inalienable Rights, that among these are
Life, Liberty, and the Pursuit of Happiness. That to secure these Rights,
Governments are instituted among Men, deriving their just Powers from the Consent
of the Governed, that whenever any Form of Government becomes destructive of
these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in
such Form as to them shall seem most likely to effect their Safety and Happiness. [98]
(emphasis supplied)
His phrase rights of man was used in the 1789 French Declaration of the Rights of
Man and of Citizens, proclaimed by the French Constituent Assembly in August
1789, viz:
The representatives of the French people, constituted in a National Assembly,
considering that ignorance, oblivion or contempt of the Rights of Man are the only
causes of public misfortunes and of the corruption of governments, have resolved to
lay down in a solemn Declaration, the natural, inalienable and sacred Rights of
Man, in order that this Declaration, being always before all the members of the
Social Body, should constantly remind them of their Rights and their Duties. . . [99]
(emphasis supplied)
Thereafter, the phrase rights of man gradually replaced natural rights in the
latter period of the eighteenth century, thus removing the theological assumptions
of medieval natural law theories. After the American and French Revolutions, the
doctrine of the rights of man became embodied not only in succinct declarations of
rights, but also in new constitutions which emphasized the need to uphold the
natural rights of the individual citizen against other individuals and particularly
against the state itself.[100]
Considerable criticism was, however, hurled against natural law and natural
rights theories, especially by the logical positivist thinkers, as these theories were
not empirically verifiable. Nevertheless, the concept of natural rights or rights of
man regained force and influence in the 1940s because of the growing awareness of
the wide scale violation of such rights perpetrated by the Nazi dictatorship in
Germany. The British leader Winston Churchill and the American leader Franklin
Roosevelt stated in the preface of their Atlantic Charter in 1942 that complete
victory over their enemies is essential to decent life, liberty, independence and
religious freedom, and to preserve human rights and justice, in their own land as

well as in other lands. (emphasis supplied) This time, natural right was recast in the
idea of human rights which belong to every human being by virtue of his or her
humanity. The idea superseded the traditional concept of rights based on notions of
God-given natural law and of social contract. Instead, the refurbished idea of human
rights was based on the assumption that each individual person was entitled to an
equal degree of respect as a human being. [101]
With this historical backdrop, the United Nations Organization published in 1948
its Universal Declaration of Human Rights (UDHR) as a systematic attempt to secure
universal recognition of a whole gamut of human rights. The Declaration affirmed
the importance of civil and political rights such as the rights to life, liberty, property;
equality before the law; privacy; a fair trial; freedom of speech and assembly, of
movement, of religion, of participation in government directly or indirectly; the right
to political asylum, and the absolute right not to be tortured. Aside from these, but
more controversially, it affirmed the importance of social and economic rights. [102]
The UDHR is not a treaty and its provisions are not binding law, but it is a
compromise of conflicting ideological, philosophical, political, economic, social and
juridical ideas which resulted from the collective effort of 58 states on matters
generally considered desirable and imperative. It may be viewed as a blending (of)
the deepest convictions and ideals of different civilizations into one universal
expression of faith in the rights of man. [103]
On December 16, 1966, the United Nations General Assembly adopted the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
International Covenant on Civil and Political Rights (ICCPR) and the Optional Protocol
to the Civil and Political Rights providing for the mechanism of checking state
compliance to the international human rights instruments such as through a
reportorial requirement among governments. These treaties entered into force on
March 23, 1976[104] and are binding as international law upon governments
subscribing to them. Although admittedly, there will be differences in interpreting
particular statements of rights and freedoms in these United Nations instruments in
the light of varied cultures and historical traditions, the basis of the covenants is a
common agreement on the fundamental objective of the dignity and worth of the
human person. Such agreement is implied in adherence to the (United Nations)
Charter and corresponds to the universal urge for freedom and dignity which strives
for expression, despite varying degrees of culture and civilization and despite the
countervailing forces of repression and authoritarianism. [105]
Human rights and fundamental freedoms were affirmed by the United Nations
Organization in the different instruments embodying these rights not just as a
solemn protest against the Nazi-fascist method of government, but also as a
recognition that the security of individual rights, like the security of national rights,
was a necessary requisite to a peaceful and stable world order. [106] Moskowitz wrote:
The legitimate concern of the world community with human rights and fundamental
freedoms stems in large part from the close relation they bear to the peace and
stability of the world. World War II and its antecedents, as well as contemporary
events, clearly demonstrate the peril inherent in the doctrine which accepts the

state as the sole arbiter in questions pertaining to the rights and freedoms of the
citizen. The absolute power exercised by a government over its citizens is not only a
source of disorder in the international community; it can no longer be accepted as
the only guaranty of orderly social existence at home. But orderly social existence is
ultimately a matter which rests in the hands of the citizen. Unless the citizen can
assert his human rights and fundamental freedoms against his own government
under the protection of the international community, he remains at the mercy of the
superior power.[107]
Similar to natural rights and civil rights, human rights as the refurbished idea of
natural right in the 1940s, eludes definition. The usual definition that it is the right
which inheres in persons from the fact of their humanity seemingly begs the
question. Without doubt, there are certain rights and freedoms so fundamental as to
be inherent and natural such as the integrity of the person and equality of persons
before the law which should be guaranteed by all constitutions of all civilized
countries and effectively protected by their laws. [108] It is nearly universally agreed
that some of those rights are religious toleration, a general right to dissent, and
freedom from arbitrary punishment. [109] It is not necessarily the case, however, that
what the law guarantees as a human right in one country should also be guaranteed
by law in all other countries.Some human rights might be considered fundamental
in some countries, but not in others. For example, trial by jury which we have earlier
cited as an example of a civil right which is not a natural right, is a basic human
right in the United States protected by its constitution, but not so in Philippine
jurisdiction.[110] Similar to natural rights, the definition of human rights is derived
from human nature, thus understandably not exact. The definition that it is a right
which inheres in persons from the fact of their humanity, however, can serve as a
guideline to identify human rights. It seems though that the concept of human
rights is broadest as it encompasses a human persons natural rights (e.g., religious
freedom) and civil rights created by law (e.g. right to trial by jury).
In sum, natural law and natural rights are not relic theories for academic
discussion, but have had considerable application and influence. Natural law and
natural rights theories have played an important role in the Declaration of
Independence, the Abolition (anti-slavery) movement, and parts of the modern Civil
Rights movement.[111] In charging Nazi and Japanese leaders with crimes against
humanity at the end of the Second World War, Allied tribunals in 1945 invoked the
traditional concept of natural law to override the defense that those charged had
only been obeying the laws of the regimes they served. [112] Likewise, natural law,
albeit called by another name such as substantive due process which is grounded
on reason and fairness, has served as legal standard for international law, centuries
of development in the English common law, and certain aspects of American
constitutional law.[113] In controversies involving the Bill of Rights, the natural law
standards of reasonableness and fairness or justified on balance are used.Questions
such as these are common: Does this form of government involvement with religion
endanger religious liberty in a way that seems unfair to some group? Does
permitting this restriction on speech open the door to government abuse of political
opponents? Does this police investigative practice interfere with citizens legitimate

interests in privacy and security? [114] Undeniably, natural law and natural rights
theories have carved their niche in the legal and political arena.
III. Natural Law and Natural Rights
in Philippine Cases and the Constitution
A. Traces of Natural Law and
Natural Rights Theory in Supreme Court Cases
Although the natural law and natural rights foundation is not articulated, some
Philippine cases have made reference to natural law and rights without raising
controversy. For example, in People v. Asas,[115]the Court admonished courts to
consider cautiously an admission or confession of guilt especially when it is alleged
to have been obtained by intimidation and force. The Court said: (w)ithal, aversion
of man against forced self-affliction is a matter of Natural Law. [116] In People v.
Agbot,[117] we did not uphold lack of instruction as an excuse for killing because we
recognized the offense of taking ones life being forbidden by natural law and
therefore within instinctive knowledge and feeling of every human being not
deprived of reason.[118] In Mobil Oil Philippines, Inc. v. Diocares, et al.,[119] Chief
Justice Fernando acknowledged the influence of natural law in stressing that the
element of a promise is the basis of contracts. In Manila Memorial Park
Cemetery, Inc. v. Court of Appeals, et al.,[120] the Court invoked the doctrine of
estoppel which we have repeatedly pronounced is predicated on, and has its origin
in equity, which broadly defined, is justice according to natural law. In Yu Con v.
Ipil, et al.,[121] we recognized the application of natural law in maritime commerce.
The Court has also identified in several cases certain natural rights such as the
right to liberty,[122] the right of expatriation,[123] the right of parents over their
children which provides basis for a parents visitorial rights over his illegitimate
children,[124] and the right to the fruits of ones industry. [125]
In Simon, Jr. et al. v. Commission on Human Rights, [126] the Court defined
human rights, civil rights, and political rights. In doing so, we considered the United
Nations instruments to which the Philippines is a signatory, namely the UDHR which
we have ruled in several cases as binding upon the Philippines, [127] the ICCPR and
the ICESCR.Still, we observed that human rights is so generic a term that at best, its
definition is inconclusive. But the term human rights is closely identified to the
universally accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights, encompassing almost
all aspects of life,[128] i.e., the individuals social, economic, cultural, political and civil
relations.[129] On the other hand, we defined civil rights as referring to:
. . . those (rights) that belong to every citizen of the state or country, or, in a wider
sense, to all inhabitants, and are not connected with the organization or
administration of government. They include the rights to property, marriage, equal
protection of the laws, freedom of contract, etc. Or, as otherwise defined, civil rights
are rights appertaining to a person by virtue of his citizenship in a state or

community. Such term may also refer, in its general sense, to rights capable of
being enforced or redressed in a civil action. [130]
Guarantees against involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt are also identified as civil rights.
[131]
The Courts definition of civil rights was made in light of their distinction from
political rights which refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights appurtenant to
citizenship vis-a-vis the management of government.[132]
To distill whether or not the Courts reference to natural law and natural rights
finds basis in a natural law tradition that has influenced Philippine law and
government, we turn to Philippine constitutional law history.
B. History of the Philippine Constitution
and the Bill of Rights
During the Spanish colonization of the Philippines, Filipinos ardently fought for
their fundamental rights. The Propaganda Movement spearheaded by our national
hero Jose Rizal, Marcelo H. del Pilar, and Graciano Lopez-Jaena demanded
assimilation of the Philippines by Spain, and the extension to Filipinos of rights
enjoyed by Spaniards under the Spanish Constitution such as the inviolability of
person and property, specifically freedom from arbitrary action by officialdom
particularly by the Guardia Civil and from arbitrary detention and banishment of
citizens. They clamored for their right to liberty of conscience, freedom of speech
and the press, freedom of association, freedom of worship, freedom to choose a
profession, the right to petition the government for redress of grievances, and the
right to an opportunity for education. They raised the roof for an end to the abuses
of religious corporations.[133]
With the Propaganda Movement having apparently failed to bring about
effective reforms, Andres Bonifacio founded in 1892 the secret society of the
Katipunan to serve as the military arm of the secessionist movement whose
principal aim was to create an independent Filipino nation by armed revolution. [134]
While preparing for separation from Spain, representatives of the movement
engaged in various constitutional projects that would reflect the longings and
aspirations of the Filipino people. On May 31, 1897, a republican government was
established in Biak-na-Bato, followed on November 1, 1897 by the unanimous
adoption of the Provisional Constitution of the Republic of the Philippines, popularly
known as the Constitution of Biak-na-Bato, by the revolutions representatives. The
document was an almost exact copy of the Cuban Constitution of Jimaguayu, [135]
except for four articles which its authors Felix Ferrer and IsabeloArtacho added.
These four articles formed the constitutions Bill of Rights and protected, among
others, religious liberty, the right of association, freedom of the press, freedom from
imprisonment except by virtue of an order issued by a competent court, and
freedom from deprivation of property or domicile except by virtue of judgment
passed by a competent court of authority.[136]

The Biak-na-Bato Constitution was projected to have a life-span of two years,
after which a final constitution would be drafted. Two months after it was adopted,
however, the Pact of Biak-na-Bato was signed whereby the Filipino military leaders
agreed to cease fighting against the Spaniards and guaranteed peace for at least
three years, in exchange for monetary indemnity for the Filipino men in arms and
for promised reforms. Likewise, General Emilio Aguinaldo, who by then had become
the military leader after Bonifacios death, agreed to leave the Philippines with other
Filipino leaders. They left for Hongkong in December 1897.
A few months later, the Spanish-American war broke out in April 1898. Upon
encouragement of American officials, Aguinaldo came back to the Philippines and
set up a temporary dictatorial government with himself as dictator. In June 1898,
the dictatorship was terminated and Aguinaldo became the President of the
Revolutionary Government.[137] By this time, the relations between the American
troops and the Filipino forces had become precarious as it became more evident
that the Americans planned to stay. In September 1898, the Revolutionary Congress
was inaugurated whose primary goal was to formulate and promulgate a
Constitution. The fruit of their efforts was the Malolos Constitution which, as
admitted by Felipe Calderon who drafted it, was based on the constitutions of South
American Republics[138] while the Bill of Rights was substantially a copy of the
Spanish Constitution.[139] The Bill of Rights included among others, freedom of
religion, freedom from arbitrary arrests and imprisonment, security of the domicile
and of papers and effects against arbitrary searches and seizures, inviolability of
correspondence, due process in criminal prosecutions, freedom of expression,
freedom of association, and right of peaceful petition for the redress of grievances.
Its Article 28 stated that (t)he enumeration of the rights granted in this title does
not imply the prohibition of any others not expressly stated. [140] This suggests that
natural law was the source of these rights. [141] The Malolos Constitution was shortlived. It went into effect in January 1899, about two months before the ratification of
the Treaty of Paris transferring sovereignty over the Islands to the United States.
Within a month after the constitutions promulgation, war with the United States
began and the Republic survived for only about ten months. On March 23, 1901,
American forces captured Aguinaldo and a week later, he took his oath of allegiance
to the United States.[142]
In the early months of the war against the United States, American President
McKinley sent the First Philippine Commission headed by Jacob Gould Schurman to
assess the Philippine situation. On February 2, 1900, in its report to the President,
the Commission stated that the Filipino people wanted above all a guarantee
of those fundamental human rights which Americans hold to be the
natural and inalienable birthright of the individual but which under
Spanish domination in the Philippines had been shamefully invaded and
ruthlessly trampled upon.[143] (emphasis supplied) In response to this, President
McKinley, in his Instruction of April 7, 1900 to the Second Philippine Commission,
provided an authorization and guide for the establishment of a civil government in
the Philippines and stated that (u)pon every division and branch of the government
of the Philippines . . . must be imposed these inviolable rules . . . These inviolable

rules were almost literal reproductions of the First to Ninth and the Thirteenth
Amendment of the United States Constitution, with the addition of the prohibition of
bills of attainder and ex post facto laws in Article 1, Section 9 of said Constitution.
The inviolable rules or Bill of Rights provided, among others, that no person shall be
deprived of life, liberty, or property without due process of law; that no person shall
be twice put in jeopardy for the same offense or be compelled to be a witness
against himself; that the right to be secure against unreasonable searches and
seizures shall not be violated; that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for redress of grievances. Scholars have characterized the
Instruction as the Magna Charta of the Philippines and as a worthy rival of the Laws
of the Indies.[144]
The inviolable rules of the Instruction were re-enacted almost exactly in the
Philippine Bill of 1902,[145]an act which temporarily provided for the administration of
the affairs of the civil government in the Philippine Islands, [146] and in the Philippine
Autonomy Act of 1916,[147] otherwise known as the Jones Law, which was an act to
declare the purpose of the people of the United States as to the future of the
Philippine Islands and to provide an autonomous government for it. [148] These three
organic acts - the Instruction, the Philippine Bill of 1902, and the Jones Law extended the guarantees of the American Bill of Rights to the Philippines. In Kepner
v. United States,[149] Justice Day prescribed the methodology for applying these
inviolable rules to the Philippines, viz: (t)hese principles were not taken from the
Spanish law; they were carefully collated from our own Constitution, and embody
almost verbatim the safeguards of that instrument for the protection of life and
liberty.[150] Thus, the inviolable rules should be applied in the sense which has
been placed upon them in construing the instrument from which they were
taken.[151] (emphasis supplied)
Thereafter, the Philippine Independence Law, popularly known as the TydingsMcDuffie Law of 1934, was enacted. It guaranteed independence to the Philippines
and authorized the drafting of a Philippine Constitution. The law provided that the
government should be republican in form and the Constitution to be drafted should
contain a Bill of Rights.[152] Thus, the Constitutional Convention of 1934 was
convened. In drafting the Constitution, the Convention preferred to be generally
conservative on the belief that to be stable and permanent, the Constitution must
be anchored on the experience of the people, providing for institutions which were
the natural outgrowths of the national life. [153] As the people already had a political
organization buttressed by national traditions, the Constitution was to sanctify these
institutions tested by time and the Filipino peoples experience and to confirm the
practical and substantial rights of the people. Thus, the institutions and philosophy
adopted in the Constitution drew substantially from the organic acts which had
governed the Filipinos for more than thirty years, more particularly the Jones Law of
1916. In the absence of Philippine precedents, the Convention considered
precedents of American origin that might be suitable to our substantially American
political system and to the Filipino psychology and traditions. [154] Thus, in the words

of Claro M. Recto, President of the Constitutional Convention, the 1935 Constitution
was frankly an imitation of the American charter. [155]
Aside from the heavy American influence, the Constitution also bore traces of
the Malolos Constitution, the German Constitution, the Constitution of the Republic
of Spain, the Mexican Constitution, and the Constitutions of several South American
countries, and the English unwritten constitution. Though the Tydings-McDuffie law
mandated a republican constitution and the inclusion of a Bill of Rights, with or
without such mandate, the Constitution would have nevertheless been republican
because the Filipinos were satisfied with their experience of a republican
government; a Bill of Rights would have nonetheless been also included because
the people had been accustomed to the role of a Bill of Rights in the past organic
acts.[156]
The Bill of Rights in the 1935 Constitution was reproduced largely from the
report of the Conventions committee on bill of rights. The report was mostly a copy
of the Bill of Rights in the Jones Law, which in turn was borrowed from the American
constitution. Other provisions in the report drew from the Malolos Constitution and
the constitutions of the Republic of Spain, Italy and Japan. There was a conscious
effort to retain the phraseology of the well-known provisions of the Jones Law
because of the jurisprudence that had built around them. The Convention insistently
avoided including provisions in the Bill of Rights not tested in the Filipino
experience.[157] Thus, upon submission of its draft bill of rights to the President of the
Convention, the committee on bill of rights stated:
Adoption and adaptation have been the relatively facile work of your committee in
the formulation of a bill or declaration of rights to be incorporated in the
Constitution of the Philippine Islands. No attempt has been made to incorporate new
or radical changes. . .
The enumeration of individual rights in the present organic law (Acts of Congress of
July 1, 1902, August 29, 1916) is considered ample, comprehensive and precise
enough to safeguard the rights and immunities of Filipino citizens against abuses or
encroachments of the Government, its powers or agents. . .
Modifications or changes in phraseology have been avoided, wherever possible.
This is because the principles must remain couched in a language
expressive of their historical background, nature, extent and limitations,
as construed and expounded by the great statesmen and jurists that have
vitalized them.[158] (emphasis supplied)
The 1935 Constitution was approved by the Convention on February 8, 1935
and signed on February 19, 1935. On March 23, 1935, United States President
Roosevelt affixed his signature on the Constitution.By an overwhelming majority,
the Filipino voters ratified it on May 14, 1935. [159]
Then dawned the decade of the 60s. There grew a clamor to revise the 1935
charter for it to be more responsive to the problems of the country, specifically in
the socio-economic arena and to the sources of threats to the security of the

Republic identified by then President Marcos. In 1970, delegates to the Constitution
Convention were elected, and they convened on June 1, 1971. In their deliberations,
the spirit of moderation prevailed, and the . . . Constitution was hardly notable for
its novelty, much less a radical departure from our constitutional tradition. [160] Our
rights in the 1935 Constitution were reaffirmed and the government to which we
have been accustomed was instituted, albeit taking on a parliamentary rather than
presidential form.[161]
The Bill of Rights in the 1973 Constitution had minimal difference from its
counterpart in the 1935 Constitution. Previously, there were 21 paragraphs in one
section, now there were twenty-three. The two rights added were the recognition of
the peoples right to access to official records and documents and the right to
speedy disposition of cases. To the right against unreasonable searches and
seizures, a second paragraph was added that evidence obtained therefrom shall be
inadmissible for any purpose in any proceeding. [162]
The 1973 Constitution went into effect on January 17, 1973 and remained the
fundamental law until President Corazon Aquino rose to power in defiance of the
1973 charter and upon the direct exercise of the power of the Filipino people [163] in
the EDSA Revolution of February 23-25, 1986. On February 25, 1986, she issued
Proclamation No. 1 recognizing that sovereignty resides in the people and all
government authority emanates from them and that she and Vice President
Salvador Laurel were taking power in the name and by the will of the Filipino people.
[164]
The old legal order, constitution and enactments alike, was overthrown by the
new administration.[165] A month thenceforth, President Aquino issued Proclamation
No. 3, Declaring National Policy to Implement the Reforms Mandated by the People,
Protecting their Basic Rights, Adopting a Provisional Constitution, and Providing for
an Orderly Transition to Government under a New Constitution. The Provisional
Constitution, otherwise known as the Freedom Constitution adopted certain
provisions of the 1973 Constitution, including the Bill of Rights which was adopted
in toto, and provided for the adoption of a new constitution within 60 days from the
date of Proclamation No. 3.[166]
Pursuant to the Freedom Constitution, the 1986 Constitutional Commission
drafted the 1987 Constitution which was ratified and became effective on February
2, 1987.[167] As in the 1935 and 1973 Constitutions, it retained a republican system
of government, but emphasized and created more channels for the exercise of the
sovereignty of the people through recall, initiative, referendum and plebiscite.
[168]
Because of the wide-scale violation of human rights during the dictatorship, the
1987 Constitution contains a Bill of Rights which more jealously safeguards the
peoples fundamental liberties in the essence of a constitutional democracy, in the
words of ConCom delegate Fr. Joaquin Bernas, S.J. [169] It declares in its state policies
that (t)he state values the dignity of every human person and guarantees full
respect for human rights.[170] In addition, it has a separate Article on Social Justice
and Human Rights, under which, the Commission on Human Rights was created. [171]
Considering the American model and origin of the Philippine constitution, it is
not surprising that Filipino jurists and legal scholars define and explain the nature of

the Philippine constitution in similar terms that American constitutional law scholars
explain their constitution. Chief Justice Fernando, citing Laski, wrote about the basic
purpose of a civil society and government, viz:
The basic purpose of a State, namely to assure the happiness and welfare of its
citizens is kept foremost in mind. To paraphrase Laski, it is not an end in itself but
only a means to an end, the individuals composing it in their separate and
identifiable capacities having rights which must be respected. It is their
happiness then, and not its interest, that is the criterion by which its behavior is to
be judged; and it is their welfare, and not the force at its command, that
sets the limits to the authority it is entitled to exercise.[172] (emphasis
supplied)
Citing Hamilton, he also defines a constitution along the lines of the natural law
theory as a law for the government, safeguarding (not creating) individual rights,
set down in writing.[173] (emphasis supplied) This view is accepted by Taada and
Fernando who wrote that the constitution is a written instrument organizing the
government, distributing its powers and safeguarding the rights of the people.
[174]
Chief Justice Fernando also quoted Schwartz that a constitution is seen as an
organic instrument, under which governmental powers are both conferred and
circumscribed. Such stress upon both grant and limitation of authority is
fundamental in American theory. The office and purpose of the constitution is to
shape and fix the limits of governmental activity.[175] Malcolm and Laurel
define it according to Justice Millers definition in his opus on the American
Constitution[176] published in 1893 as the written instrument by which the
fundamental powers of government are established, limited and defined,
and by which those powers are distributed among the several departments for their
safe and useful exercise for the benefit of the body politic.[177] The constitution
exists to assure that in the governments discharge of its functions, the dignity that
is the birthright of every human being is duly safeguarded. [178]
Clearly then, at the core of constitutionalism is a strong concern for individual
rights[179] as in the modern period natural law theories. Justice Laurel as delegate to
the 1934 Constitutional Convention declared in a major address before the
Convention:
There is no constitution, worthy of the name, without a bill or declaration of rights.
(It is) the palladium of the peoples liberties and immunities, so that their persons,
homes, their peace, their livelihood, their happiness and their freedom may be safe
and secure from an ambitious ruler, an envious neighbor, or a grasping state. [180]
As Chairman of the Committee on the Declaration of Rights, he stated:
The history of the world is the history of man and his arduous struggle for
liberty. . . . It is the history of those brave and able souls who, in the ages that are
past, have labored, fought and bled that the government of the lash - that symbol of
slavery and despotism - might endure no more. It is the history of those great selfsacrificing men who lived and suffered in an age of cruelty, pain and desolation, so

that every man might stand, under the protection of great rights and
privileges, the equal of every other man.[181]
Being substantially a copy of the American Bill of Rights, the history of our Bill of
Rights dates back to the roots of the American Bill of Rights. The latter is a charter
of the individuals liberties and a limitation upon the power of the state [182] which
traces its roots to the English Magna Carta of 1215, a first in English history for a
written instrument to be secured from a sovereign ruler by the bulk of the politically
articulate community that intended to lay down binding rules of law that the ruler
himself may not violate. In Magna Carta is to be found the germ of the root principle
that there are fundamental individual rights that the State -sovereign
though it is - may not infringe.[183] (emphasis supplied)
In Sales v. Sandiganbayan, et al.,[184] quoting Allado v. Diokno,[185] this
Court ruled that the Bill of Rights guarantees the preservation of our natural rights,
viz:
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and
security against invasion by the government or any of its branches or
instrumentalities.[186] (emphasis supplied)
We need, however, to fine tune this pronouncement of the Court, considering that
certain rights in our Bill of Rights, for example habeas corpus, have been identified
not as a natural right, but a civil right created by law. Likewise, the right against
unreasonable searches and seizures has been identified in Simon as a civil right,
without expounding however what civil right meant therein - whether a natural right
existing before the constitution and protected by it, thus acquiring the status of a
civil right; or a right created merely by law and non-existent in the absence of law.
To understand the nature of the right against unreasonable search and seizure and
the corollary right to exclusion of evidence obtained therefrom, we turn a heedful
eye on the history, concept and purpose of these guarantees.
IV. History of the Guarantee against
Unreasonable Search and Seizure and the
Right to Exclusion of Illegally Seized Evidence
in the United States and in the Philippines
The origin of the guarantee against unreasonable search and seizure in the
Philippine constitutions can be traced back to hundreds of years ago in a land
distant from the Philippines. Needless to say, the right is well-entrenched in history.
The power to search in England was first used as an instrument to oppress
objectionable publications.[187] Not too long after the printing press was developed,
seditious and libelous publications became a concern of the Crown, and a broad
search and seizure power developed to suppress these publications. [188] General
warrants were regularly issued that gave all kinds of people the power to enter and

seize at their discretion under the authority of the Crown to enforce publication
licensing statutes.[189] In 1634, the ultimate ignominy in the use of general warrants
came when the early great illuminary of the common law, [190] and most influential of
the Crowns opponents,[191] Sir Edward Coke, while on his death bed, was subjected
to a ransacking search and the manuscripts of his Institutes were seized and carried
away as seditious and libelous publications. [192]
The power to issue general warrants and seize publications grew. They were
also used to search for and seize smuggled goods. [193] The developing common law
tried to impose limits on the broad power to search to no avail. In his History of the
Pleas of Crown, Chief Justice Hale stated unequivocally that general warrants were
void and that warrants must be used on probable cause and with particularity.
[194]
Member of Parliament, William Pitt, made his memorable and oft-quoted speech
against the unrestrained power to search:
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It
may be frail - its roof may shake - the wind may blow through it - the storm may
enter - the rain may enter; but the King of England may not enter; all his force dares
not cross the threshold of the ruined tenement. [195]
Nevertheless, legislation authorizing general warrants continued to be passed. [196]
In the 16th century, writs of assistance, called as such because they commanded
all officers of the Crown to participate in their execution, [197] were also common.
These writs authorized searches and seizures for enforcement of import duty laws.
[198]
The same powers and authorities and the like assistance that officials had in
England were given to American customs officers when parliament extended the
customs laws to the colonies. The abuse in the writs of assistance was not only that
they were general, but they were not returnable and once issued, lasted six months
past the life of the sovereign.[199]
These writs caused profound resentment in the colonies. [200] They were
predominantly used in Massachusetts, the largest port in the colonies [201] and the
seat of the American revolution. When the writs expired six months after the death
of George II in October 1760,[202] sixty-three Boston merchants who were opposed to
the writs retained James Otis, Jr. to petition the Superior Court for a hearing on the
question of whether new writs should be issued. [203] Otis used the opportunity to
denounce Englands whole policy to the colonies and on general warrants. [204] He
pronounced the writs of assistance as the worst instrument of arbitrary power, the
most destructive of English liberty and the fundamental principles of law, that ever
was found in an English law book since they placed the liberty of every man in the
hands of every petty officer. [205] Otis was a visionary and apparently made the first
argument for judicial review and nullifying of a statute exceeding the legislatures
power under the Constitution and natural law. [206] This famous debate in February
1761 in Boston was perhaps the most prominent event which inaugurated the
resistance of the colonies to the oppressions of the mother country. Then and there,
said John Adams, then and there was the first scene of the first act of opposition to
the arbitrary claims of Great Britain. Then and there the child Independence was
born.[207] But the Superior Court nevertheless held that the writs could be issued. [208]

Once the customs officials had the writs, however, they had great difficulty
enforcing the customs laws owing to rampant smuggling and mob resistance from
the citizenry.[209] The revolution had begun. The Declaration of Independence
followed. The use of general warrants and writs of assistance in enforcing customs
and tax laws was one of the causes of the American Revolution. [210]
Back in England, shortly after the Boston debate, John Wilkes, a member of
Parliament, anonymously published the North Briton, a series of pamphlets
criticizing the policies of the British government. [211] In 1763, one pamphlet was very
bold in denouncing the government. Thus, the Secretary of the State issued a
general warrant to search for the authors, printers, and publishers of [the] seditious
and treasonable paper.[212] Pursuant to the warrant, Wilkes house was searched and
his papers were indiscriminately seized. He sued the perpetrators and obtained a
judgment for damages. The warrant was pronounced illegal as totally subversive of
the liberty and person and property of every man in this kingdom. [213]
Seeing Wilkes success, John Entick filed an action for trespass for the search and
seizure of his papers under a warrant issued earlier than Wilkes. This became the
case of Entick v. Carrington,[214] considered a landmark of the law of search and
seizure and called a familiar monument of English freedom. [215] Lord Camden, the
judge, held that the general warrant for Enticks papers was invalid. Having
described the power claimed by the Secretary of the State for issuing general
search warrants, and the manner in which they were executed, Lord Camden spoke
these immortalized words, viz:
Such is the power and therefore one would naturally expect that the law to warrant
it should be clear in proportion as the power is exorbitant. If it is law, it will be found
in our books; if it is not to be found there, it is not law.
The great end for which men entered into society was to secure their
property. That right is preserved sacred and incommunicable in all instances where
it has not been taken away or abridged by some public law for the good of the
whole. The cases where this right of property is set aside by positive law are
various. Distresses, executions, forfeitures, taxes, etc., are all of this description,
wherein every man by common consent gives up that right for the sake of justice
and the general good. By the laws of England, every invasion of private property, be
it ever so minute, is a trespass. No man can set his foot upon my ground without my
license but he is liable to an action though the damage be nothing; which is proved
by every declaration in trespass where the defendant is called upon to answer for
bruising the grass and even treading upon the soil. If he admits the fact, he is
bound to show by way of justification that some positive law has justified
or excused him. . . If no such excuse can be found or produced, the silence
of the books is an authority against the defendant and the plaintiff must
have judgment. . .[216] (emphasis supplied)
The experience of the colonies on the writs of assistance which spurred the
Boston debate and the Entick case which was a monument of freedom that every
American statesman knew during the revolutionary and formative period of
America, could be confidently asserted to have been in the minds of those who

framed the Fourth Amendment to the Constitution, and were considered as
sufficiently explanatory of what was meant by unreasonable searches and seizures.
[217]
The American experience with the writs of assistance and the Entick case were
considered by the United States Supreme Court in the first major case to discuss the
scope of the Fourth Amendment right against unreasonable search and seizure in
the 1885 case of Boyd v. United States, supra, where the court ruled, viz:
The principles laid down in this opinion (Entick v. Carrington, supra) affect the very
essence of constitutional liberty and security. They reach farther than the
concrete form of the case then before the court, with its adventitious circumstances;
they apply to allinvasions, on the part of the Government and its
employees, of the sanctity of a mans home and the privacies of life. It is
not the breaking of his doors and the rummaging of his drawers that
constitutes the essence of the offense; but it is the invasion of his
indefeasible right of personal security, personal liberty and private
property, where that right has never been forfeited by his conviction of some
public offense; it is the invasion of this sacred right which underlies and constitutes
the essence of Lord Camdens judgment.[218] (emphasis supplied)
In another landmark case of 1914, Weeks v. United States,[219] the Court,
citing Adams v. New York,[220]reiterated that the Fourth Amendment was intended
to secure the citizen in person and property against the unlawful invasion of the
sanctity of his home by officers of the law, acting under legislative or judicial
sanction.
With this genesis of the right against unreasonable searches and seizures and
the jurisprudence that had built around it, the Fourth Amendment guarantee was
extended by the United States to the Filipinos in succinct terms in President
McKinleysInstruction of April 7, 1900, viz:
. . . that the right to be secure against unreasonable searches and seizures shall not
be violated.[221]
This provision in the Instruction was re-enacted in Section 5 of the Philippine Bill
of 1902, this time with a provision on warrants, viz:
That the right to be secure against unreasonable searches and seizures shall not be
violated.
x xxxxxxxx
That no warrant shall issue except upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the person or
things to be seized.[222]
The above provisions were reproduced verbatim in the Jones Law of 1916.
Then came the 1935 Constitution which provides in Article IV, Section 1(3), viz:

Section 1(3). The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures shall not be violated, and
no warrants shall issue but upon probable cause, to be determined by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the
persons or things to be seized.
Initially, the Constitutional Conventions committee on bill of rights proposed an
exact copy of the Fourth Amendment of the United States Constitution in their draft,
viz:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.[223]
During the debates of the Convention, however, Delegate Vicente Francisco
proposed to amend the provision by inserting the phrase to be determined by the
judge after examination under oath or affirmation of the complainant and the
witness he may produce in lieu of supported by oath or affirmation. His proposal
was based on Section 98 of General Order No. 58 or the Code of Criminal Procedure
then in force in the Philippines which provided that: (t)he judge or justice of the
peace must, before issuing the warrant, examine on oath or affirmation the
complainant and any witness he may produce and take their deposition in writing.
[224]
The amendment was accepted as it was a remedy against the evils pointed out
in the debates, brought about by the issuance of warrants, many of which were in
blank, upon mere affidavits on facts which were generally found afterwards to be
false.[225]
When the Convention patterned the 1935 Constitutions guarantee against
unreasonable searches and seizures after the Fourth Amendment, the Convention
made specific reference to the Boyd case and traced the history of the guarantee
against unreasonable search and seizure back to the issuance of general warrants
and writs of assistance in England and the American colonies. [226] From the Boyd
case, it may be derived that our own Constitutional guarantee against
unreasonable searches and seizures, which is an almost exact copy of the Fourth
Amendment, seeks to protect rights to security of person and property as well as
privacy in ones home and possessions.
Almost 40 years after the ratification of the 1935 Constitution, the provision on
the right against unreasonable searches and seizures was amended in Article IV,
Section 3 of the 1973 Constitution, viz:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or

affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Noticeably, there were three modifications of the 1935 counterpart, namely: (1) the
clause was made applicable to searches and seizures of whatever nature and for
any purpose; (2) the provision on warrants was expressly made applicable to both
search warrant or warrant of arrest; and (3) probable cause was made determinable
not only by a judge, but also by such other officer as may be authorized by law. [227]
But the concept and purpose of the right remained substantially the same.
As a corollary to the above provision on searches and seizures, the exclusionary
rule made its maiden appearance in Article IV, Section 4(2) of the Constitution, viz:
Section 4 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety and order require
otherwise.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
That evidence obtained in violation of the guarantee against unreasonable
searches and seizures is inadmissible was an adoption of the Courts ruling in the
1967 case of Stonehill v. Diokno.[228]
Sections 3 and 4 of the 1973 Constitution were adopted in totoin Article I,
Section 1 of the Freedom Constitution which took effect on March 25, 1986, viz:
Section 1. The provision of . . . ARTICLE IV (Bill of Rights) . . . of the 1973
Constitution, as amended, remain in force and effect and are hereby adopted in toto
as part of this Provisional Constitution. [229]
Thereafter, pursuant to the Freedom Constitution, the 1987 Constitution was
drafted and ratified on February 2, 1987. Sections 2 and 3, Article III thereof
provide:
Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by a judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
x xxxxxx xx
Section 3 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety and order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

The significant modification of Section 2 is that probable cause may be determined
only by a judge and no longer by such other responsible officer as may be
authorized by law. This was a reversion to the counterpart provision in the 1935
Constitution.
Parenthetically, in the international arena, the UDHR provides a similar
protection in Article 12, viz:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.
The ICCPR similarly protects this human right in Article 17, viz:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
2. Everyone has the right to protection of the law against such interference or
attacks.
In the United States, jurisprudence on the Fourth Amendment continued to grow
from the Boyd case. The United States Supreme Court has held that the focal
concern of the Fourth Amendment is to protect the individual from arbitrary and
oppressive official conduct.[230] It also protects the privacies of life and the sanctity
of the person from such interference.[231] In later cases, there has been a shift in
focus: it has been held that the principal purpose of the guarantee is the protection
of privacy rather than property, [f]or the Fourth Amendment protects people, not
places.[232] The tests that have more recently been formulated in interpeting the
provision focus on privacy rather than intrusion of property such as the
constitutionally protected area test in the 1961 case of Silverman v. United
States[233] and the reasonable expectation of privacy standard in Katz v. United
States[234] which held that the privacy of communication in a public telephone
booth comes under the protection of the Fourth Amendment.
Despite the shift in focus of the Fourth Amendment in American jurisdiction, the
essence of this right in Philippine jurisdiction has consistently been understood as
respect for ones personality, property, home, and privacy. Chief Justice Fernando
explains, viz:
It is deference to ones personality that lies at the core of this right, but it could
be also looked upon as a recognition of a constitutionally protected area,
primarily ones home, but not necessarily excluding an office or a hotel room. (Cf.
Hoffa v. United States, 385 US 293 [1966]) What is sought to be regarded is a
mans prerogative to choose who is allowed entry in his residence, for him
to retreat from the cares and pressures, even at times the oppressiveness
of the outside world, where he can truly be himself with his family. In that
haven of refuge,his individuality can assert itself not only in the choice of
who shall be welcome but likewise in the objects he wants around him.
There the state, however powerful, does not as such have access except under the
circumstances noted, for in the traditional formulation, his house, however humble,

is his castle. (Cf. Cooley: Near in importance to exemption from any arbitrary control
of the person is that maxim of the common law which secures to the citizen
immunity in his home against the prying eyes of the government, and protection in
person, property, and papers against even the process of the law, except in
specified cases. The maxim that every mans house is his castle, is made part of our
constitutional law in the clauses prohibiting unreasonable searches and seizures,
and has always been looked upon as of high value to the citizen. (1 Constitutional
Limitations, pp. 610-611 [1927]) In the language of Justice Laurel, this provision is
intended to bulwark individual security, home, and legitimate possessions
(Rodriquez v. Vollamiel, 65 Phil. 230, 239 (1937). Laurel con.) Thus is protected his
personal privacy and dignity against unwarranted intrusion by the State.
There is to be no invasion on the part of the government and its
employees of the sanctity of a mans home and the privacies of life. (Boyd v.
United States, 116 US 616, 630 [1886])[235] (emphasis supplied)
As early as 1904, the Court has affirmed the sanctity and privacy of the home in
United States v. Arceo,[236]viz:
The inviolability of the home is one of the most fundamental of all the individual
rights declared and recognized in the political codes of civilized nations. No one can
enter into the home of another without the consent of its owners or occupants.
The privacy of the home - the place of abode, the place where man with
his family may dwell in peace and enjoy the companionship of his wife and
children unmolested by anyone, even the king, except in rare cases - has
always been regarded by civilized nations as one of the most sacred
personal rights to whom men are entitled. Both the common and the civil law
guaranteed to man the right to absolute protection to the privacy of his home. The
king was powerful; he was clothed with majesty; his will was the law, but, with few
exceptions, the humblest citizen or subject might shut the door of his humble
cottage in the face of the monarch and defend his intrusion into that privacy which
was regarded as sacred as any of the kingly prerogatives. . .
A mans house is his castle, has become a maxim among the civilized peoples of the
earth. His protection therein has become a matter of constitutional protection in
England, America, and Spain, as well as in other countries.
x xxxxxxxx
So jealously did the people of England regard this right to enjoy, unmolested, the
privacy of their houses, that they might even take the life of the unlawful intruder, if
it be nighttime. This was also the sentiment of the Romans expressed by Tully: Quid
enimsanctius quid omnireligionemunitius, quamdomusuniuscujusquecivium. [237]
(emphasis supplied)
The Court reiterated this in the 1911 case of United States v. De Los Reyes,
et al.,[238] to demonstrate the uncompromising regard placed upon the privacy of
the home that cannot be violated by unreasonable searches and seizures, viz:

In the case of McClurg vs. Brenton (123 Iowa, 368), the court, speaking of the right
of an officer to enter a private house to search for the stolen goods, said:
The right of the citizen to occupy and enjoy his home, however mean or humble,
free from arbitrary invasion and search, has for centuries been protected with the
most solicitous care by every court in the English-speaking world, from Magna
Charta down to the present, and is embodied in every bill of rights defining the
limits of governmental power in our own republic.
The mere fact that a man is an officer, whether of high or low degree, gives him no
more right than is possessed by the ordinary private citizen to break in upon the
privacy of a home and subject its occupants to the indignity of a search for the
evidence of crime, without a legal warrant procured for that purpose. No amount of
incriminating evidence, whatever its source, will supply the place of such warrant.
At the closed door of the home, be it palace or hovel, even blood-hounds must wait
till the law, by authoritative process, bids it open. . . [239] (emphasis supplied)
It is not only respect for personality, privacy and property, but to the very dignity of
the human being that lies at the heart of the provision.
There is also public interest involved in the guarantee against unreasonable
search and seizure. The respect that government accords its people helps it elicit
allegiance and loyalty of its citizens. Chief Justice Fernando writes about the right
against unreasonable search and seizure as well as to privacy of communication in
this wise:
These rights, on their face, impart meaning and vitality to that liberty which in a
constitutional regime is a mans birth-right. There is the recognition of the area
of privacy normally beyond the power of government to intrude.Full and
unimpaired respect to that extent is accorded his personality. He is free
from the prying eyes of public officials. He is let alone, a prerogative even more
valued when the agencies of publicity manifest less and less diffidence in
impertinent and unwelcome inquiry into ones person, his home, wherever he may
be minded to stay, his possessions, his communication. Moreover, in addition to
the individual interest, there is a public interest that is likewise served by
these constitutional safeguards. They make it easier for state authority to
enlist the loyalty and allegiance of its citizens, with the unimpaired
deference to ones dignity and standing as a human being, not only to his
person as such but to things that may be considered necessary
appurtenances to a decent existence. A government that thus recognizes such
limits and is careful not to trespass on what is the domain subject to his sole control
is likely to prove more stable and enduring. [240] (emphasis supplied)
In the 1967 case of Stonehill, et al. v. Diokno,[241] this Court affirmed the
sanctity of the home and the privacy of communication and correspondence, viz:
To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the domicile and the

privacy of communication and correspondence at the mercy of the whims,
caprice or passion of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above quoted - to outlaw the socalled general warrants. It is not difficult to imagine what would happen, in times
of keen political strife, when the party in power feels that the minority is likely to
wrest it, even though by legal means.[242] (emphasis supplied)
Even after the 1961 Silverman and 1967 Katz cases in the United States,
which emphasized protection of privacy rather than property as the principal
purpose of the Fourth Amendment, this Court declared the avowed purposes of the
guarantee in the 1981 case of People v. CFI of Rizal, Branch IX, Quezon City,
[243]
viz:
The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property
and unlawful invasion of the security of the home by officers of the
lawacting under legislative or judicial sanction and to give remedy against such
usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76
Phil. 637 [1946]). The right to privacy is an essential condition to the dignity
and happiness and to the peace and security of every individual, whether
it be of home or of persons and correspondence. (Taada and Carreon, Political
Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of
this great fundamental right against unreasonable searches and seizures
must be deemed absolute as nothing is closer to a mans soul than the
serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and reasons. [244] (emphasis
supplied)
Even if it were conceded that privacy and not property is the focus of the
guarantee as shown by the growing American jurisprudence, this Court has upheld
the right to privacy and its central place in a limited government such as the
Philippines, viz:
The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: The concept of limited
government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited
government.Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector - protection, in other words, of the dignity
and integrity of the individual- has become increasingly important as
modern society has developed. All the forces of technological age industrialization, urbanization, and organization - operate to narrow the area of
privacy and facilitate intrusion to it. In modern times, the capacity to maintain and

support this enclave of private life marks the difference between a democratic and
a totalitarian society.[245] (emphasis supplied)
The right to privacy discussed in Justice Douglas dissent in the Hayden case is
illuminating. We quote it at length, viz:
Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in
United States v. Poller, 43 F2d 911, 914: [I]t is only fair to observe that the real evil
aimed at by the Fourth Amendment is the search itself, that invasion of a
mans privacy which consists in rummaging about among his effects to
secure evidence against him. If the search is permitted at all, perhaps it does
not make so much difference what is taken away, since the officers will ordinarily
not be interested in what does not incriminate, and there can be no sound policy in
protecting what does.
x xxxxxxxx
The constitutional philosophy is, I think, clear. The personal effects and
possessions of the individual (all contraband and the like excepted) are
sacrosanct from prying eyes, from the long arm of the law, from any
rummaging by police. Privacy involves the choice of the individual to
disclose or to reveal what he believes, what he thinks, what he possesses.
The article may be nondescript work of art, a manuscript of a book, a personal
account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who
wrote the Bill of Rights believed that every individual needs both to
communicate with others and to keep his affairs to himself. That dual
aspect of privacy means that the individual should have the freedom to
select for himself the time and circumstances when he will share his
secrets with others and decide the extent of the sharing (footnote
omitted). This is his prerogative not the States. The Framers, who were as
knowledgeable as we, knew what police surveillance meant and how the practice of
rummaging through ones personal effects could destroy freedom.
x xxxxxxxx
I would . . . leave with the individual the choice of opening his private
effects (apart from contraband and the like) to the police and keeping
their contents as secret and their integrity inviolate. The existence of that
choice is the very essence of the right of privacy.[246] (emphasis supplied)
Thus, in Griswold v. Connecticut,[247] the United States Supreme Court upheld
the right to marital privacy and ruled that lawmakers could not make the use of
contraceptives a crime and sanction the search of marital bedrooms, viz:
Would we allow the police to search the sacred precincts of marital bedrooms for
telltale signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights older than our
political parties, older than our school system. Marriage is a coming together for

better or for worse, hopefully enduring, and intimate to the degree of being sacred.
It is an association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions. [248]
(emphasis supplied)
In relation to the right against unreasonable searches and seizures, private
respondent Dimaano likewise claims a right to the exclusionary rule, i.e., that
evidence obtained from an unreasonable search cannot be used in evidence against
her. To determine whether this right is available to her, we again examine the
history, concept, and purpose of this right in both the American and Philippine
jurisdictions.
The exclusionary rule has had an uneven history in both the United States and
Philippine jurisdictions. In common law, the illegal seizure of evidence did not affect
its admissibility because of the view that physical evidence was the same however
it was obtained. As distinguished from a coerced confession, the illegal seizure did
not impeach the authenticity or reliability of physical evidence. This view prevailed
in American jurisdiction until the Supreme Court ruled in the 1914 Weeks case that
evidence obtained in violation of the Fourth Amendment was inadmissible in federal
court as it amounted to theft by agents of the government. This came to be known
as the exclusionary rule and was believed to deter federal law enforcers from
violating the Fourth Amendment. In 1949, the Fourth Amendment was incorporated
into the DueProcess Clause under the Fourteenth Amendment [249] and made
applicable in the state system in Wolf v. Colorado,[250] but the Court rejected to
incorporate the exclusionary rule. At the time Wolf was decided, 17 states followed
the Weeks doctrine while 30 states did not. [251] The Court reasoned:
We cannot brush aside the experience of States which deem the incidence of such
conduct by the police too slight to call for a deterrent remedy not by way of
disciplinary measures but by overriding the relevant rules of evidence.There are,
moreover, reasons for excluding evidence unreasonably obtained by the federal
police which are less compelling in the case of police under State or local authority.
The public opinion of a community can far more effectively be exerted against
oppressive conduct on the part of police directly responsible to the community itself
than can local opinion, sporadically aroused, be brought to bear upon remote
authority pervasively exerted throughout the country. [252]
This difference in treatment on the federal and state level of evidence obtained
illegally resulted in the silver platter doctrine. State law enforcement agents would
provide federal officers with illegally seized evidence, which was then admissible in
federal court because, as with illegally seized evidence by private citizens, federal
officers were not implicated in obtaining it. Thus, it was said that state law enforcers
served up the evidence in federal cases in silver platter. This pernicious practice
was stopped with the United States Supreme Courts 1960 decision, Elkins v.
United States.[253] Twelve years after Wolf, the United States Supreme Court
reversed Wolf and incorporated the exclusionary rule in the state system in Mapp
v. Ohio[254]becauseother means of controlling illegal police behavior had failed. [255]

We quote at length the Mapp ruling as it had a significant influence in the
exclusionary rule in Philippine jurisdiction, viz:
. . . Today we once again examine the Wolfs constitutional documentation of the
right of privacy free from unreasonable state intrusion, and after its dozen years on
our books, are led by it to close the only courtroom door remaining open to
evidence secured by official lawlessness in flagrant abuse of that basic right,
reserved to all persons as a specific guarantee against that very same unlawful
conduct. . .
Since the Fourth Amendments right to privacy has been declared enforceable
against the States through the Due Process Clause of the Fourteenth, it is
enforceable against them by the same sanction of exclusion as it is used against the
Federal Government. Were it otherwise, then just as without the Weeks rule the
assurance against unreasonable federal searches and seizures would be a form of
words, valueless and undeserving of mention in a perpetual charter of inestimable
human liberties, so too, without that rule the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not
to permit this Courts high regard as freedom implicit in the concept of
ordered liberty. At that time that the Court held in Wolf that the amendment was
applicable to the States through the Due Process Clause, the cases of this court as
we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its
provisions. Even Wolf stoutly adhered to that proposition. The right to privacy, when
conceded operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and enjoyment
had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process
to all constitutionally unreasonable searches - state or federal - it was
logically and constitutionally necessary that the exclusion doctrine - an
essential part of the right to privacy - be also insisted upon as an essential
ingredient of the right newly recognized by the Wolf case. In short, the
admission of the new constitutional right by Wolf could not consistently
tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to grant the right but
in reality to withhold its privilege and enjoyment. Only last year the Court
itself recognized that the purpose of the exclusionary rule is to deter - to
compel respect for the constitutional guaranty in the only available way by removing the incentive to disregard it. (Elkins v. United States, 364 US at
217)
x xxxxxxxx
The ignoble shortcut to conviction left open to the State tends to destroy the entire
system of constitutional restraints on which the liberties of the people rest. (Cf.
Marcus v. Search Warrant of Property, 6 L ed 2d post, p. 1127) Having once

recognized that the right to privacy embodied in the Fourth Amendment is
enforceable against the States, and that the right to be secure against rude
invasions of privacy by state officers is, therefore constitutional in origin, we can no
longer permit that right to remain an empty promise. Because it is enforceable in
the same manner and to like effect as other basic rights secured by its Due Process
Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and truth, gives
to the individual no more than that which the Constitution guarantees
him, to the police officer no less than that to which honest law
enforcement is entitled, and to the courts, that judicial integrity so
necessary in the true administration of justice.[256] (emphasis supplied)
It is said that the exclusionary rule has three purposes. The major and most
often invoked is the deterrence of unreasonable searches and seizures as stated in
Elkins v. United States[257]and quoted inMapp: (t)he rule is calculated to prevent,
not repair. Its purpose is to deter to compel respect for constitutional guaranty in
the only effective available way by removing the incentive to disregard it. [258]
Second is the imperative of judicial integrity, i.e., that the courts do not become
accomplices in the willful disobedience of a Constitution they are sworn to uphold . .
. by permitting unhindered governmental use of the fruits of such invasions. . . A
ruling admitting evidence in a criminal trial . . . has the necessary effect of
legitimizing the conduct which produced the evidence, while an application of the
exclusionary rule withholds the constitutional imprimatur. [259] Third is the more
recent purpose pronounced by some members of the United States Supreme Court
which is that of assuring the people all potential victims of unlawful government
conduct that the government would not profit from its lawless behavior, thus
minimizing the risk of seriously undermining popular trust in government. [260] The
focus of concern here is not the police but the public. This third purpose is implicit in
the Mapp declaration that no man is to be convicted on unconstitutional evidence.
[261]
In Philippine jurisdiction, the Court has likewise swung from one position to the
other on the exclusionary rule. In the 1920 case of UyKheytin v. Villareal,[262] the
Court citing Boyd, ruled that seizure or compulsory production of a mans private
papers to be used against him was tantamount to self-incrimination and was
therefore unreasonable search and seizure. This was a proscription against fishing
expeditions. The Court restrained the prosecution from using the books as evidence.
Five years later or in 1925, we held in People v. Carlos[263] that although the Boyd
and SilverthorneLumber Co. and Silverthorne v. United States [264] cases are
authorities for the doctrine that documents obtained by illegal searches were
inadmissible in evidence in criminal cases, Weeks modified this doctrine by adding
that the illegality of the search and seizure should have initially been directly
litigated and established by a pre-trial motion for the return of the things seized. As
this condition was not met, the illegality of the seizure was not deemed an obstacle
to admissibility. The subject evidence was nevertheless excluded, however, for
being hearsay. Thereafter, in 1932, the Court did not uphold the defense of self-

incrimination when fraudulent books, invoices and records that had been seized
were presented in evidence in People v. Rubio.[265]The Court gave three reasons:
(1) the public has an interest in the proper regulation of the partys books; (2) the
books belonged to a corporation of which the party was merely a manager; and (3)
the warrants were not issued to fish for evidence but to seize instruments used in
the violation of [internal revenue] laws and to further prevent the perpetration of
fraud.[266]
The exclusionary rule applied in UyKheytin was reaffirmed seventeen years
thence in the 1937 case of Alvarez v. Court of First Instance [267] decided under
the 1935 Constitution. TheCourt ruled that the seizure of books and documents for
the purpose of using them as evidence in a criminal case against the possessor
thereof is unconstitutional because it makes the warrant unreasonable and the
presentation of evidence offensive of the provision against self-incrimination. At the
close of the Second World War, however, the Court, in Alvero v. Dizon,[268] again
admitted in evidence documents seized by United States military officers without a
search warrant in a prosecution by the Philippine Government for treason. The Court
reasoned that this was in accord with the Laws and Customs of War and that the
seizure was incidental to an arrest and thus legal. The issue of self-incrimination was
not addressed at all and instead, the Court pronounced that even if the seizure had
been illegal, the evidence would nevertheless be admissible following jurisprudence
in the United States that evidence illegally obtained by state officers or private
persons may be used by federal officers.[269]
Then came Moncado v. Peoples Court[270]in 1948.The Court made a
categorical declaration that it is established doctrine in the Philippines that the
admissibility of evidence is not affected by the illegality of the means used for
obtaining it. It condemned the pernicious influence of Boyd and totally rejected the
doctrine in Weeks as subversive of evidentiary rules in Philippine jurisdiction. The
ponencia declared that the prosecution of those guilty of violating the right against
unreasonable searches and seizures was adequate protection for the people. Thus it
became settled jurisprudence that illegally obtained evidence was admissible if
found to be relevant to the case [271] until the 1967 landmark decision of Stonehill v.
Diokno[272]which overturned theMoncado rule. The Court held in Stonehill, viz:
. . . Upon mature deliberation, however, we are unanimously of the opinion that the
position taken in the Moncado case must be abandoned. Said position was in line
with the American common law rule, that the criminal should not be allowed to go
free merely because the constable has blundered, (People v. Defore, 140 NE 585)
upon the theory that the constitutional prohibition against unreasonable searches
and seizures is protected by means other than the exclusion of evidence unlawfully
obtained (Wolf v. Colorado, 93 L.Ed. 1782), such as common-law action for damages
against the searching officer, against the party who procured the issuance of the
search warrant and against those assisting in the execution of an illegal search,
their criminal punishment, resistance, without liability to an unlawful seizure, and
such other legal remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical
means of enforcing the constitutional injunction against unreasonable searches and
seizures.[273]
The Court then quoted the portion of the Mapp case which we have quoted at
length abovein affirming that the exclusionary rule is part and parcel of the
right against unreasonable searches and seizures.The Stonehill ruling was
incorporated in Article 4, Section 4(2) of the 1973 Constitution and carried over to
Article 3, Section 3(2) of the 1987 Constitution.
V. Application of the Natural Law
Culled from History and Philosophy:
Are the Rights Against Unreasonable Search and Seizure
and to the Exclusion of Illegally Seized Evidence Natural Rights
which Private Respondent Dimaano Can Invoke?
In answering this question, Justice Goldbergs concurring opinion in the
Griswold case serves as a helpful guidepost to determine whether a right is so
fundamental that the people cannot be deprived of it without undermining the
tenets of civil society and government, viz:
In determining which rights are fundamental, judges are not left at large to decide
cases in light of their personal and private notions. Rather, they must look to the
traditions and [collective] conscience of our people to determine whether a principle
is so rooted [there] . . . as to be ranked as fundamental. (Snyder v. Com. of
Massachusetts, 291 U.S. 97, 105 (1934)). The inquiry is whether a right involved is
of such character that it cannot be denied without violating those fundamental
principles of liberty and justice which lie at the base of all our civil and political
institutions. . . . Powell v. State of Alabama, 287 U.S. 45, 67 (1932) [274] (emphasis
supplied)
In deciding a case, invoking natural law as solely a matter of the judges
personal preference, invites criticism that the decision is a performative
contradiction and thus self-defeating. Critics would point out that while the decision
invokes natural law that abhors arbitrariness, that same decision is tainted with
what it abhors as it stands on the judges subjective and arbitrary choice of a school
of legal thought. Just as one judge will fight tooth and nail to defend the natural law
philosophy, another judge will match his fervor in defending a contrary philosophy
he espouses. However, invoking natural law because the history, tradition and
moral fiber of a people indubitably show adherence to it is an altogether different
story, for ultimately, in our political and legal tradition, the people are the source of
all government authority, and the courts are their creation. While it may be argued
that the choice of a school of legal thought is a matter of opinion, history is a fact
against which one cannot argue - and it would not be turning somersault with
history to say that the American Declaration of Independence and the consequent

adoption of a constitution stood on a modern natural law theory foundation as this
is universally taken for granted by writers on government. [275]It is also well-settled in
Philippine history that the American system of government and constitution were
adopted by our 1935 Constitutional Convention as a model of our own republican
system of government and constitution. In the words of Claro M. Recto, President of
the Convention, the 1935 Constitution is frankly an imitation of the American
Constitution. Undeniably therefore, modern natural law theory, specifically Lockes
natural rights theory, was used by the Founding Fathers of the American
constitutional democracy and later also used by the Filipinos. [276] Although the 1935
Constitution was revised in 1973, minimal modifications were introduced in the
1973 Constitution which was in force prior to the EDSA Revolution. Therefore, it
could confidently be asserted that the spirit and letter of the 1935 Constitution, at
least insofar as the system of government and the Bill of Rights were concerned,
still prevailed at the time of the EDSA Revolution. Even the 1987 Constitution
ratified less than a year from the EDSA Revolution retained the basic provisions of
the 1935 and 1973 Constitutions on the system of government and the Bill of
Rights, with the significant difference that it emphasized respect for and protection
of human rights and stressed that sovereignty resided in the people and all
government authority emanates from them.
Two facts are easily discernible from our constitutional history. First, the Filipinos
are a freedom-loving race with high regard for their fundamental and natural rights.
No amount of subjugation or suppression, by rulers with the same color as the
Filipinos skin or otherwise, could obliterate their longing and aspiration to enjoy
these rights. Without the peoples consent to submit their natural rights to the ruler,
[277]
these rights cannot forever be quelled, for like water seeking its own course and
level, they will find their place in the life of the individual and of the nation; natural
right, as part of nature, will take its own course. Thus, the Filipinos fought for and
demanded these rights from the Spanish and American colonizers, and in fairly
recent history, from an authoritarian ruler. They wrote these rights in stone in every
constitution they crafted starting from the 1899 Malolos Constitution. Second,
although Filipinos have given democracy its own Filipino face, it is undeniable that
our political and legal institutions are American in origin. The Filipinos adopted the
republican form of government that the Americans introduced and the Bill of Rights
they extended to our islands, and were the keystones that kept the body politic
intact. These institutions sat well with the Filipinos who had long yearned for
participation in government and were jealous of their fundamental and natural
rights. Undergirding these institutions was the modern natural law theory which
stressed natural rights in free, independent and equal individuals who banded
together to form government for the protection of their natural rights to life, liberty
and property. The sole purpose of government is to promote, protect and preserve
these rights. And when government not only defaults in its duty but itself violates
the very rights it was established to protect, it forfeits its authority to demand
obedience of the governed and could be replaced with one to which the people
consent. The Filipino people exercised this highest of rights in the EDSA Revolution
of February 1986.

I will not endeavor to identify every natural right that the Filipinos fought for in
EDSA. The case at bar merely calls us to determine whether two particular rights the rights against unreasonable search and seizure and to the exclusion of evidence
obtained therefrom - have the force and effect of natural rights which private
respondent Dimaano can invoke against the government.
I shall first deal with the right against unreasonable search and seizure. On
February 25, 1986, the new president, Corazon Aquino, issued Proclamation No. 1
where she declared that she and the vice president were taking power in the name
and by the will of the Filipino people and pledged to do justice to the numerous
victims of human rights violations. [278] It is implicit from this pledge that the new
government recognized and respected human rights. Thus, at the time of the search
on March 3, 1986, it may be asserted that the government had the duty, by its own
pledge, to uphold human rights. This presidential issuance was what came closest
to a positive law guaranteeing human rights without enumerating them.
Nevertheless, even in the absence of a positive law granting private respondent
Dimaano the right against unreasonable search and seizure at the time her house
was raided, I respectfully submit that she can invoke her natural right against
unreasonable search and seizure.
The right against unreasonable search and seizure is a core right implicit in the
natural right to life, liberty and property. Our well-settled jurisprudence that the
right against unreasonable search and seizure protects the peoples rights to
security of person and property, to the sanctity of the home, and to privacy is a
recognition of this proposition. The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government he
established and consented to, will protect the security of his person and property.
The ideal of security in life and property dates back even earlier than the modern
philosophers and the American and French revolutions, but pervades the whole
history of man. It touches every aspect of mans existence, thus it has been
described, viz:
The right to personal security emanates in a persons legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It includes
the right to exist, and the right to enjoyment of life while existing, and it is invaded
not only by a deprivation of life but also of those things which are necessary to the
enjoyment of life according to the nature, temperament, and lawful desires of the
individual.[279]
The individual in the state of nature surrendered a portion of his undifferentiated
liberty and agreed to the establishment of a government to guarantee his natural
rights, including the right to security of person and property, which he could not
guarantee by himself. Similarly, the natural right to liberty includes the right of a
person to decide whether to express himself and communicate to the public or to
keep his affairs to himself and enjoy his privacy. Justice Douglas reminds us of the
indispensability of privacy in the Hayden case, thus: Those who wrote the Bill of
Rights believed that every individual needs both to communicate with others and to

keep his affairs to himself. A natural right to liberty indubitably includes the freedom
to determine when and how an individual will share the private part of his being and
the extent of his sharing.And when he chooses to express himself, the natural right
to liberty demands that he should be given the liberty to be truly himself with his
family in his home, his haven of refuge where he can retreat from the cares and
pressures, even at times the oppressiveness of the outside world, to borrow the
memorable words of Chief Justice Fernando. For truly, the drapes of a mans castle
are but an extension of the drapes on his body that cover the essentials. In
unreasonable searches and seizures, the prying eyes and the invasive hands of the
government prevent the individual from enjoying his freedom to keep to himself and
to act undisturbed within his zone of privacy. Finally, indispensable to the natural
right to property is the right to ones possessions. Property is a product of ones toil
and might be considered an expression and extension of oneself. It is what an
individual deems necessary to the enjoyment of his life. With unreasonable searches
and seizures, ones property stands in danger of being rummaged through and taken
away. In sum, as pointed out in De Los Reyes, persons are subjected to indignity
by an unreasonable search and seizure because at bottom, it is a violation of a
persons natural right to life, liberty and property. It is this natural right which sets
man apart from other beings, which gives him the dignity of a human being.
It is understandable why Filipinos demanded that every organic law in their
history guarantee the protection of their natural right against unreasonable search
and seizure and why the UDHR treated this right as a human right. It is a right
inherent in the right to life, liberty and property; it is a right appertain(ing) to man in
right of his existence, a right that belongs to man by virtue of his nature and
depends upon his personality, and not merely a civil right created and protected by
positive law. The right to protect oneself against unreasonable search and seizure,
being a right indispensable to the right to life, liberty and property, may be derived
as a conclusion from what Aquinas identifies as mans natural inclination to selfpreservation and self-actualization. Man preserves himself by leading a secure life
enjoying his liberty and actualizes himself as a rational and social being in choosing
to freely express himself and associate with others as well as by keeping to and
knowing himself. For after all, a reflective grasp of what it means to be human and
how one should go about performing the functions proper to his human nature can
only be done by the rational person himself in the confines of his private space.
Only he himself in his own quiet time can examine his life knowing that an
unexamined life is not worth living.
Every organic law the Filipinos established (the Malolos, 1935, 1973, and 1987
Constitutions) and embraced (the Instruction, Philippine Bill of 1902, and Jones Law)
in the last century included a provision guaranteeing the peoples right against
unreasonable search and seizure because the people ranked this right as
fundamental and natural. Indeed, so fundamental and natural is this right that the
demand for it spurred the American revolution against the English Crown. It resulted
in the Declaration of Independence and the subsequent establishment of the
American Constitution about 200 years ago in 1789. A revolution is staged only for
the most fundamental of reasons - such as the violation of fundamental and natural

rights - for prudence dictates that governments long established should not be
changed for light and transient reasons.[280]
Considering that the right against unreasonable search and seizure is a natural
right, the government cannot claim that private respondent Dimaano is not entitled
to the right for the reason alone that there was no constitution granting the right at
the time the search was conducted. This right of the private respondent precedes
the constitution, and does not depend on positive law. It is part of natural rights. A
violation of this right along with other rights stirred Filipinos to revolutions. It is the
restoration of the Filipinos natural rights that justified the establishment of the
Aquino government and the writing of the 1987 Constitution. I submit that even in
the absence of a constitution, private respondent Dimaano had a fundamental and
natural right against unreasonable search and seizure under natural law.
We now come to the right to the exclusion of evidence illegally seized. From
Stonehill quoting Mapp, we can distill that the exclusionary rule in both the
Philippine and American jurisdictions is a freedom implicit in the concept of ordered
liberty for it is a necessary part of the guarantee against unreasonable searches and
seizures, which in turn is an essential part of the right to privacy that the
Constitution protects.If the exclusionary rule were not adopted, it would be to grant
the right (against unreasonable search and seizure) but in reality to withhold its
privilege and enjoyment. Thus, the inevitable conclusion is that the exclusionary
rule is likewise a natural right that private respondent Dimaano can invoke even in
the absence of a constitution guaranteeing such right.
To be sure, the status of the exclusionary right as a natural right is admittedly
not as indisputable as the right against unreasonable searches and seizures which is
firmly supported by philosophy and deeply entrenched in history. On a lower tier,
arguments have been raised on the constitutional status of the exclusionary right.
Some assert, on the basis of United States v. Calandra,[281] that it is only a
judicially-created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the party
aggrieved.[282] Along the same line, others contend that the right against
unreasonable search and seizure merely requires some effective remedy, and thus
Congress may abolish or limit the exclusionary right if it could replace it with other
remedies of a comparable or greater deterrent effect. But these contentions have
merit only if it is conceded that the exclusionary rule is merely an optional remedy
for the purpose of deterrence.[283]
Those who defend the constitutional status of the exclusionary right, however,
assert that there is nothing in Weeks that says that it is a remedy [284] or a manner
of deterring police officers.[285] In Mapp, while the court discredited other means of
enforcing the Fourth Amendment cited in Wolf, thethrust of the opinion was
broader.Justice Clarke opined that no man is to be convicted on unconstitutional
evidence[286] and held that the exclusionary rule is an essential part of both the
Fourth and Fourteenth Amendments.[287]
Formulated in the Aquinian concept of human law, the debate is whether the
exclusionary right is the first kind of human law which may be derived as a

conclusion from the natural law precept that one should do no harm to another
man, in the same way that conclusions are derived from scientific principles, in
which case the exclusionary right has force from natural law and does not depend
on positive law for its creation; or if it is the second kind of human law which is
derived by way of determination of natural law, in the same way that a carpenter
determines the shape of a house, such that it is merely a judicially or legislatively
chosen remedy or deterrent, in which case the right only has force insofar as
positive law creates and protects it.
In holding that the right against unreasonable search and seizure is a
fundamental and natural right, we were aided by philosophy and history. In the case
of the exclusionary right, philosophy can also come to the exclusionary rights aid,
along the lines of Justice Clarkes proposition in the Mapp case that no man shall be
convicted on unconstitutional evidence. Similarly, the government shall not be
allowed to convict a man on evidence obtained in violation of a natural right
(against unreasonable search and seizure) for the protection of which, government
and the law were established. To rule otherwise would be to sanction the brazen
violation of natural rights and allow law enforcers to act with more temerity than a
thief in the night for they can disturb ones privacy, trespass ones abode, and steal
ones property with impunity. This, in turn, would erode the peoples trust in
government.
Unlike in the right against unreasonable search and seizure, however, history
cannot come to the aid of the exclusionary right. Compared to the right against
unreasonable search and seizure, the exclusionary right is still in its infancy stage in
Philippine jurisdiction, having been etched only in the 1973 Constitution after the
1967 Stonehill ruling which finally laid to rest the debate on whether illegally
seized evidence should be excluded. In the United States, the exclusionary rights
genesis dates back only to the 1885 Boyd case on the federal level, and to the
1961 Mapp case in the state level. The long period of non-recognition of the
exclusionary right has not caused an upheaval, much less a revolution, in both the
Philippine and American jurisdictions. Likewise, the UDHR, a response to violation of
human rights in a particular period in world history, did not include the exclusionary
right. It cannot confidently be asserted therefore that history can attest to its
natural right status. Without the strength of history and with philosophy alone left
as a leg to stand on, the exclusionary rights status as a fundamental and natural
right stands on unstable ground. Thus, the conclusion that it can be invoked even in
the absence of a constitution also rests on shifting sands.
Be that as it may, the exclusionary right is available to private respondent
Dimaano as she invoked it when it was already guaranteed by the Freedom
Constitution and the 1987 Constitution. The AFP Board issued its resolution on
Ramas unexplained wealth only on July 27, 1987. The PCGGs petition for forfeiture
against Ramas was filed on August 1, 1987 and was later amended to name the
Republic of the Philippines as plaintiff and to add private respondent Dimaano as codefendant. Following the petitioners stance upheld by the majority that the
exclusionary right is a creation of the Constitution, then it could be invoked as a

constitutional right on or after the Freedom Constitution took effect on March 25,
1986 and later, when the 1987 Constitution took effect on February 2, 1987.
VI. Epilogue
The Filipino people have fought revolutions, by the power of the pen, the
strength of the sword and the might of prayer to claim and reclaim their
fundamental rights. They set these rights in stone in every constitution they
established. I cannot believe and so hold that the Filipinos during that one month
from February 25 to March 24, 1986 were stripped naked of all their rights, including
their natural rights as human beings. With the extraordinary circumstances before,
during and after the EDSA Revolution, the Filipinos simply found themselves without
a constitution, but certainly not without fundamental rights. In that brief one month,
they retrieved their liberties and enjoyed them in their rawest essence, having just
been freed from the claws of an authoritarian regime. They walked through history
with bare feet, unshod by a constitution, but with an armor of rights guaranteed by
the philosophy and history of their constitutional tradition. Those natural rights
inhere in man and need not be granted by a piece of paper.
To reiterate, the right against unreasonable search and seizure which private
respondent Dimaano invokes is among the sacred rights fought for by the Filipinos
in the 1986 EDSA Revolution. It will be a profanity to deny her the right after the
fight had been won. It does not matter whether she believed in the righteousness of
the EDSA Revolution or she contributed to its cause as an alleged ally of the
dictator, for as a human being, she has a natural right to life, liberty and property
which she can exercise regardless of existing or non-existing laws and irrespective
of the will or lack of will of governments.
I wish to stress that I am not making the duty of the Court unbearably difficult
by taking it to task every time a right is claimed before it to determine whether it is
a natural right which the government cannot diminish or defeat by any kind of
positive law or action. The Court need not always twice measure a law or action,
first utilizing the constitution and second using natural law as a yardstick. However,
the 1986 EDSA Revolution was extraordinary, one that borders the miraculous. It
was the first revolution of its kind in Philippine history, and perhaps even in the
history of this planet. Fittingly, this separate opinion is the first of its kind in this
Court, where history and philosophy are invoked not as aids in the interpretation of
a positive law, but to recognize a right not written in a papyrus but inheres in man
as man. The unnaturalness of the 1986 EDSA revolution cannot dilute nor defeat the
natural rights of man, rights that antedate constitutions, rights that have been the
beacon lights of the law since the Greek civilization. Without respect for natural
rights, man cannot rise to the full height of his humanity.
I concur in the result.
9. AQUINO, JR, V ENRILE

G.R. No. L-35546 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF BENIGNO S.
AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON
RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO
ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V.
RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.
IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF JOAQUIN P.
ROCES, TEODORO M. LOCSIN, SR., ROLANDO FADUL, ROSALINA GALANG,
GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO CONSTANTINO, AND LUIS R.
MAURICIO, petitioners,
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES; THE CHIEF, PHILIPPINE CONSTABULARY, et al., respondents.

IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF JOSE W.
DIOKNO, CARMEN I. DIOKNO, *1petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO ESPINO, THE
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES.respondents.
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ,
petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO
TATAD, PRESS SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35547 September 17, 1974 *2
ENRIQUE VOLTAIRE GARCIA II, petitioner,
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO ESPINO,
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN PONCE
ENRILE, SECRETARY OF NATIONAL DEFENSE, respondents.
IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF VERONICA L.
YUYITUNG AND TAN CHIN HIAN, petitioners,
vs.
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO
ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN.
FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY, respondents.
IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF AMANDO
DORONILA JUAN L. MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA,
LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN CUSIPAG, ROBERTO
ORDOEZ, MANUEL ALMARIO AND WILLIE BAUN, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO
ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN.
FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35571 September 17, 1974. *3
IN THE MATTER OF THE PETITION FOR HABEASCORPUS OF BREN Z. GUIAO,
TERESITA M. GUIAO,petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN. ROMEO

ESPINO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES: AND BRIG.
GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY, respondents.
ERNESTO RONDON, petitioner,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL V.
RAMOS, CHIEF, PHILIPPINE CONSTABULARY; AND MAJOR RODULFO MIANA,
respondents.
MAKALINTAL, C.J.:p
These cases are all petitions for habeas corpus, the petitioners having been
arrested and detained by the military by virtue of the President's Proclamation No.
1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the decision of the Court
in the sense that a decision represents a consensus of the required majority of its
members not only on the judgment itself but also on the rationalization of the issues
and the conclusions arrived at. On the final result the vote is practically unanimous;
this is a statement of my individual opinion as well as a summary of the voting on
the major issues. Why no particular Justice has been designated to write just one
opinion for the entire Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as Chief
Justice I should write that opinion. The impracticability of the suggestion shortly
became apparent for a number of reasons, only two of which need be mentioned.
First, the discussions, as they began to touch on particular issues, revealed a lack of
agreement among the Justices as to whether some of those issues should be taken
up although it was not necessary to do so, they being merely convenient for the
purpose of ventilating vexing questions of public interest, or whether the decision
should be limited to those issues which are really material and decisive in these
cases. Similarly, there was no agreement as to the manner the issues should be
treated and developed. The same destination would be reached, so to speak, but
through different routes and by means of different vehicles of approach. The writing
of separate opinions by individual Justices was thus unavoidable, and
understandably so for still another reason, namely, that although little overt
reference to it was made at the time, the future verdict of history was very much a
factor in the thinking of the members, no other case of such transcendental
significance to the life of the nation having before confronted this Court. Second
and this to me was the insuperable obstacle I was and am of the opinion, which
was shared by six other Justices 1at the time the question was voted upon, that
petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his petition
(G.R. No. L-35539) should be granted, and therefore I was in no position to set down
the ruling of the Court on each of the arguments raised by him, except indirectly,
insofar as they had been raised likewise in the other cases.

It should be explained at this point that when the Court voted on Diokno's motion to
withdraw his petition he was still under detention without charges, and continued to
remain so up to the time the separate opinions of the individual Justices were put in
final form preparatory to their promulgation on September 12, which was the last
day of Justice Zaldivars tenure in the Court. 2Before they could be promulgated,
however, a major development supervened: petitioner Diokno was released by the
President in the morning of September 11, 1974. In view thereof all the members of
this Court except Justice Castro agreed to dismiss Diokno's petition on the ground
that it had become moot, with those who originally voted to grant the motion for
withdrawal citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546),
either have been permitted to withdraw their petitions or have been released from
detention subject to certain restrictions. 3In the case of Aquino, formal charges of
murder, subversion and illegal possession of firearms were lodged against him with
a Military Commission on August 11, 1973; and on the following August 23 he
challenged the jurisdiction of said Commission as well as his continued detention by
virtue of those charges in a petition for certiorari and prohibition filed in this Court
(G.R.
No.
L-37364). The question came up as to whether or not Aquino's petition for habeas
corpus should be dismissed on the ground that the case as to him should more
appropriately be resolved in this new petition. Of the twelve Justices, however, eight
voted against such dismissal and chose to consider the case on the merits. 4
On Diokno's motion to withdraw his petition I voted in favor of granting it for two
reasons. In the first place such withdrawal would not emasculate the decisive and
fundamental issues of public interest that demanded to be resolved, for they were
also raised in the other cases which still remained pending. Secondly, since it was
this petitioner's personal liberty that was at stake, I believed he had the right to
renounce the application for habeas corpus he initiated. Even if that right were not
absolute I still would respect his choice to remove the case from this Court's
cognizance, regardless of the fact that I disagreed with many of his reasons for so
doing. I could not escape a sense of irony in this Court's turning down the plea to
withdraw on the ground, so he alleges among others, that this is no longer the Court
to which he originally applied for relief because its members have taken new oaths
of office under the 1973 Constitution, and then ruling adversely to him on the
merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of
this Court and therefore should not be allowed to pass unanswered. Any answer,
however, would not be foreclosed by allowing the withdrawal. For my part, since
most of those statements are of a subjective character, being matters of personal
belief and opinion, I see no point in refuting them in these cases. Indeed my
impression is that they were beamed less at this Court than at the world outside
and designed to make political capital of his personal situation, as the publicity
given to them by some segments of the foreign press and by local underground
propaganda news sheets subsequently confirmed. It was in fact from that
perspective that I deemed it proper to respond in kind, that is, from a non-judicial

forum, in an address I delivered on February 19, 1974 before the LAWASIA, the
Philippine Bar Association and the Philippine Lawyers' Association. Justice
Teehankee, it may be stated, is of the opinion that a simple majority of seven votes
out of twelve is legally sufficient to make the withdrawal of Diokno's petition
effective, on the theory that the requirement of a majority of eight votes applies
only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President
on September 11 all the members of this Court except Justice Castro were agreed
that his petition had become moot and therefore should no longer be considered on
the merits. This notwithstanding, some of the opinions of the individual members,
particularly Justices Castro and Teehankee, should be taken in the time setting in
which they were prepared, that is, before the order for the release of Diokno was
issued.
The Cases.
The events which form the background of these nine petitions are related, either
briefly or in great detail, in the separate opinions filed by the individual Justices. The
petitioners were arrested and held pursuant to General Order No. 2 of the President
(September 22, 1972), "for being participants or for having given aid and comfort in
the conspiracy to seize political and state power in the country and to take over the
Government by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he
assumed by virtue of Proclamation No. 1081 (September 21, 1972) placing the
entire country under martial law. The portions of the proclamation immediately in
point read as follows:
xxx xxxxxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue
of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article I, Section 1
of the Constitution under martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me personally or upon my
direction.
In addition, I do hereby order that all persons presently detained, as well as all
others who may hereafter be similarly detained for the crimes of insurrection or
rebellion, and all other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith, for crimes against
national security and the law of nations, crimes against public order, crimes
involving usurpation of authority, rank, title and improper use of names, uniforms
and insignia, crimes committed by public officers, and for such other crimes as will
be enumerated in orders that I shall subsequently promulgate, as well as crimes as

a consequence of any violation of any decree, order or regulation promulgated by
me personally or promulgated upon my direction shall be kept under detention until
otherwise ordered released by me or by my duly designated representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the
President shall be commander-in-chief of all armed forces of the Philippines and,
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof, when the public safety
requires it, he may suspend the privilege of the writ ofhabeas corpus, or place the
Philippines or any part thereof under martial law."
1. The first major issue raised by the parties is whether this Court may inquire into
the validity of Proclamation No. 1081. Stated more concretely, is the existence of
conditions claimed to justify the exercise of the power to declare martial law subject
to judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is
political and therefore its determination is beyond the jurisdiction of this Court. The
reasons are given at length in the separate opinions they have respectively signed.
Justice Fernandez adds that as a member of the Convention that drafted the 1973
Constitution he believes that "the Convention put an imprimatur on the proposition
that the validity of a martial law proclamation and its continuation is political and
non-justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per se
beyond the Court's jurisdiction, the judicial power vested in it by the Constitution
being plenary and all-embracing, but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with the Executive's
Proclamation, dealing as it does with national security, for which the responsibility is
vested by the charter in him alone. But the Court should act, Justice Barredo opines,
when its abstention from acting would result in manifest and palpable transgression
of the Constitution proven by facts of judicial notice, no reception of evidence being
contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those
opinions involves disparate methods of approach. Justice Esguerra maintains that
the findings of the President on the existence of the grounds for the declaration of
martial law are final and conclusive upon the Courts. He disagrees vehemently with
the ruling inLansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a
return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs. Castaeda, 91
Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need not be
overturned, indeed does not control in these cases. He draws a distinction between
the power of the President to suspend the privilege of the writ of habeas corpus,
which was the issue in Lansang, and his power to proclaim martial law, calling
attention to the fact that while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such prohibition or
qualification with respect to the declaration of martial law.

Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds
that there is no dispute as to the existence of a state of rebellion in the country, and
on that premise emphasizes the factor of necessity for the exercise by the President
of his power under the Constitution to declare martial law, holding that the decision
as to whether or not there is such necessity is wholly confided to him and therefore
is not subject to judicial inquiry, his responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and
Muoz Palma. They hold that the constitutional sufficiency of the proclamation may
be inquired into by the Court, and would thus apply the principle laid down in
Lansang although that case refers to the power of the President to suspend the
privilege of the writ ofhabeas corpus. The recognition of justiciability accorded to
the question in Lansang, it should be emphasized, is there expressly distinguished
from the power of judicial review in ordinary civil or criminal cases, and is limited to
ascertaining "merely whether he (the President) has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act." The test is not whether the President's decision is correct but
whether, in suspending the writ, he did or did not act arbitrarily. Applying this test,
the finding by the Justices just mentioned is that there was no arbitrariness in the
President's proclamation of martial law pursuant to the 1935 Constitution; and I
concur with them in that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to the existence of a
state of rebellion in the country, had not disappeared, indeed had been
exacerbated, as events shortly before said proclamation clearly demonstrated. On
this Point the Court is practically unanimous; Justice Teehankee merely refrained
from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of
justiciability is of not much more than academic interest for purposes of arriving at
a judgment. I am not unduly exercised by Americas decisions on the subject written
in another age and political clime, or by theories of foreign authors in political
science. The present state of martial law in the Philippines is peculiarly Filipino and
fits into no traditional patterns or judicial precedents.
In the first place I am convinced (as are the other Justices), without need of
receiving evidence as in an ordinary adversary court proceeding, that a state of
rebellion existed in the country when Proclamation No. 1081 was issued. It was a
matter of contemporary history within the cognizance not only of the courts but of
all observant people residing here at the time. Many of the facts and events recited
in detail in the different "Whereases" of the proclamation are of common
knowledge. The state of rebellion continues up to the present. The argument that
while armed hostilities go on in several provinces in Mindanao there are none in
other regions except in isolated pockets in Luzon, and that therefore there is no
need to maintain martial law all over the country, ignores the sophisticated nature
and ramifications of rebellion in a modern setting. It does not consist simply of
armed clashes between organized and identifiable groups on fields of their own
choosing. It includes subversion of the most subtle kind, necessarily clandestine and
operating precisely where there is no actual fighting. Underground propaganda,

through printed news sheets or rumors disseminated in whispers; recruitment of
armed and ideological adherents, raising of funds, procurement of arms and
material, fifth-column activities including sabotage and intelligence all these are
part of the rebellion which by their nature are usually conducted far from the battle
fronts. They cannot be counteracted effectively unless recognized and dealt with in
that context.
Secondly, my view, which coincides with that of other members of the Court as
stated in their opinions, is that the question of validity of Proclamation No. 1081 has
been foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec.
3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land and
shall remain valid, legal, binding and effective even after ... the ratification of this
Constitution ..." To be sure, there is an attempt in these cases to resuscitate the
issue of the effectivity of the new Constitution. All that, however, is behind us now.
The question has been laid to rest by our decision in Javellana vs. Executive
Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of course by the existing
political realities both in the conduct of national affairs and in our relations with
other countries.
On the effect of the transitory provision Justice Muoz Palma withholds her assent to
any sweeping statement that the same in effect validated, in the constitutional
sense, all "such proclamations, decrees, instructions, and acts promulgated, issued,
or done by the incumbent President." All that she concedes is that the transitory
provision merely gives them "the imprimatur of a law but not of a constitutional
mandate," and as such therefore "are subject to judicial review when proper under
the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this
Court in the present cases into the constitutional sufficiency of the factual bases for
the proclamation of martial law has become moot and purposeless as a
consequence of the general referendum of July 27-28, 1973. The question
propounded to the voters was: "Under the (1973) Constitution, the President, if he
so desires, can continue in office beyond 1973. Do you want President Marcos to
continue beyond 1973 and finish the reforms he initiated under Martial Law?" The
overwhelming majority of those who cast their ballots, including citizens between
15 and 18 years, voted affirmatively on the proposal. The question was thereby
removed from the area of presidential power under the Constitution and transferred
to the seat of sovereignty itself. Whatever may be the nature of the exercise of that
power by the President in the beginning whether or not purely political and
therefore non-justiciable this Court is precluded from applying its judicial
yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have
not withdrawn their petitions because they are still subject to certain restrictions,
5
the ruling of the Court is that the petitions should be dismissed. The power to
detain persons even without charges for acts related to the situation which justifies
the proclamation of martial law, such as the existence of a state of rebellion,

necessarily implies the power (subject, in the opinion of the Justices who consider
Lansang applicable, to the same test of arbitrariness laid down therein), to impose
upon the released detainees conditions or restrictions which are germane to and
necessary to carry out the purposes of the proclamation. Justice Fernando, however,
"is for easing the restrictions on the right to travel of petitioner Rodrigo" and others
similarly situated and so to this extent dissents from the ruling of the majority; while
Justice Teehankee believes that those restrictions do not constitute deprivation of
physical liberty within the meaning of the constitutional provision on the privilege of
the writ ofhabeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is the
suspension of the said privilege with respect to persons arrested or detained for
acts related to the basic objective of the proclamation, which is to suppress
invasion, insurrection, or rebellion, or to safeguard public safety against imminent
danger thereof. The preservation of society and national survival take precedence.
On this particular point, that is, that the proclamation of martial law automatically
suspends the privilege of the writ as to the persons referred to, the Court is
practically unanimous. Justice Fernando, however, says that to him that is still an
open question; and Justice Muoz Palma qualifiedly dissents from the majority in her
separate opinion, but for the reasons she discusses therein votes for the dismissal
of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS
OF THE COURT IN THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED
DISMISSING ALL THE PETITIONS, EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY
WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS
COURT, AS HEREINABOVE MENTIONED. NO COSTS.
10. JAVELLANA V EXECUTIVE SEC

G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO,
ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAADA,
petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL
DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN
OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H.
LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE,
in his capacity as Secretary of National Defense; General ROMEO ESPINO, in his

capacity as Chief of Staff of the Armed Forces of the Philippines; TANCIO E.
CASTAEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in
his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as
President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the
National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE
AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER,
respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN,
JR., and RAUL M. GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF
NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE
AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for
petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and
Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively
as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which
We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2,
which was amended by Resolution No. 4 of said body, adopted on June 17,
1969, calling a Convention to propose amendments to the Constitution of the
Philippines. Said Resolution No. 2, as amended, was implemented by Republic
Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10,
1970, and the 1971 Constitutional Convention began to perform its functions
on June 1, 1971. While the Convention was in session on September 21,
1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the Philippines. The
next day, November 30, 1972, the President of the Philippines issued
Presidential Decree No. 73, "submitting to the Filipino people for ratification
or rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention, and appropriating funds therefor," as
well as setting the plebiscite for said ratification or rejection of the Proposed
Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R.
No. L-35925, against the Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question
to be answered by the voters, and the appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper
submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no
sufficient time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad
against the Commission on Elections (Case G.R. No. L- 35929) on December 11,
1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of
Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by
Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by SedfreyOrdoez, et al. against the
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing (Case
G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto
Jimenez against the Commission on Elections, the Auditor General, the Treasurer of
the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961),
and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission

on Elections, the Secretary of Education, the National Treasurer and the Auditor
General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required
to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly heard on Monday,
December 18, 1972, at 9:30 a.m. The hearing was continued on December 19,
1972. By agreement of the parties, the aforementioned last case G.R. No. L35979 was, also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the aforementioned
cases were given a short period of time within which "to submit their notes on the
points they desire to stress." Said notes were filed on different dates, between
December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free
and open debate on the proposed Constitution."
In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President reportedly
after consultation with, among others, the leaders of Congress and the Commission
on Elections the Court deemed it more imperative to defer its final action on
these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said motion,
inter alia:
"6. That the President subsequently announced the issuance of Presidential Decree
No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose

[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and when (the
tentative new dates given following the postponement of the plebiscite from the
original date of January 15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in accordance with the
existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions
to be asked to the Citizens Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to be held?
[Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be
added to the four (4) question previously announced, and that the forms of the
question would be as follows:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the government?
[Bulletin Today, January 10, 1973; emphasis an additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies:
[1] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new Constitution?
[4] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to be
called?
[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied]
"12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be
convened at all, it should not be done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the plebiscite on
the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so
many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough
for stability to be established in the country, for reforms to take root and normalcy
to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his
powers with more authority. We want him to be strong and firm so that he can
accomplish all his reform programs and establish normalcy in the country. If all
other measures fail, we want President Marcos to declare a revolutionary
government along the lines of the new Constitution without the ad interim
Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads:

QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite on the New
Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question
added in the last list of questions to be asked to the Citizens Assemblies, namely:
Do you approve of the New
Constitution?
in relation to the question following it:
Do you still want a plebiscite to be called to
ratify the new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the
people through the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court
will immediately decide and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion
on the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at
the plebiscite be prohibited has now collapsed and that a free plebiscite can no
longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by the
petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution
requiring the respondents in said three (3) cases to comment on said "urgent
motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior
thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case
G.R. No. L-35948 riled a "supplemental motion for issuance of restraining order and
inclusion of additional respondents," praying
"... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roo; the Department
of Agrarian Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; their deputies, subordinates and substitutes, and
all other officials and persons who may be assigned such task, from
collecting, certifying, and announcing and reporting to the President or
other officials concerned, the so-called Citizens' Assemblies
referendum results allegedly obtained when they were supposed to
have met during the period comprised between January 10 and January
15, 1973, on the two questions quoted in paragraph 1 of this
Supplemental Urgent Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask further that
this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of Local
Governments and its head, Secretary Jose Roo; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and
reporting to the President the supposed Citizens' Assemblies referendum results
allegedly obtained when they were supposed to have met during the period
between January 10 and January 15, 1973, particularly on the two questions quoted
in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because:

[a] The elections contemplated in the Constitution, Article XV, at which
the proposed constitutional amendments are to be submitted for
ratification, are elections at which only qualified and duly registered
voters are permitted to vote, whereas, the so called Citizens'
Assemblies were participated in by persons 15 years of age and older,
regardless of qualifications or lack thereof, as prescribed in the Election
Code;
[b] Elections or plebiscites for the ratification of constitutional amendments
contemplated in Article XV of the Constitution have provisions for the secrecy of
choice and of vote, which is one of the safeguards of freedom of action, but votes in
the Citizens' Assemblies were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly and honest elections,
and such provisions are a minimum requirement for elections or plebiscites for the
ratification of constitutional amendments, but there were no similar provisions to
guide and regulate proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more than a handful
of the so called Citizens' Assemblies have been actually formed, because the
mechanics of their organization were still being discussed a day or so before the day
they were supposed to begin functioning:
"Provincial governors and city and municipal mayors had been meeting
with barrio captains and community leaders since last Monday [January
8, 1973) to thresh out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin Today, January 10,
1973]
"It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe that such assemblies
could be organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because:
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the

said Presidential Decree No. 86. and the instructions incidental thereto clearly fall
within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November
30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39,
Petition].
"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of:
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned
in paragraph 1 hereof shall have been announced, a conflict will arise
between those who maintain that the 1935 Constitution is still in force,
on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason
of the announcement of the results of the proceedings of the so-called Citizens'
Assemblies will argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has placed

Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this
Honorable Court."
On the same date January 15, 1973 the Court passed a resolution requiring the
respondents in said case G.R. No. L-35948 to file "file an answer to the said motion
not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing
"on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date
last mentioned, at noontime, the Secretary of Justice called on the writer of this
opinion and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which
had just been signed by the President. Thereupon, the writer returned to the
Session Hall and announced to the Court, the parties in G.R. No. L-35948
inasmuch as the hearing in connection therewith was still going on and the public
there present that the President had, according to information conveyed by the
Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio,
district or ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen Assembly members kept by
the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on
the question as to whether or not the people would still like a plebiscite to be called
to ratify the new Constitution, fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no need for a

plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, theKatipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers in me vested by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.) FERDINAND
E.
MARCOS
"President of the
Philippines
"By the President:
"ALEJANDRO
"Executive Secretary"
MELCHOR
Such is the background of the cases submitted determination. After admitting some
of the allegations made in the petition in L-35948 and denying the other allegations
thereof, respondents therein alleged in their answer thereto, by way affirmative
defenses: 1) that the "questions raised" in said petition "are political in character";
2) that "the Constitutional Convention acted freely and had plenary authority to
propose not only amendments but a Constitution which would supersede the
present Constitution"; 3) that "the President's call for a plebiscite and the
appropriation of funds for this purpose are valid"; 4) that "there is not an improper
submission" and "there can be a plebiscite under Martial Law"; and 5) that the
"argument that the Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on the proclamation of
Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the aforementioned
cases and, after extensive discussions on the merits thereof, have deemed it best
that each Member write his own views thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on the points in issue. Hence, the

individual views of my brethren in the Court are set forth in the opinions attached
hereto, except that, instead of writing their separate opinions, some Members have
preferred to merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved
therein, after which he recapitulated the views of the Members of the Court, as
follows:
1. There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,
Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion
that the issue has become moot and academic, whereas Justices Barredo, Makasiar
and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue
has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and
myself have voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold
the same view.
5. On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra
are of the opinion that issue involves questions of fact which cannot be
predetermined, and that Martial Law per se does not necessarily preclude the
factual possibility of adequate freedom, for the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra
and myself are of the opinion that the question of validity of said
Proclamation has not been properly raised before the Court, which,
accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No.
1102 has been submitted to and should be determined by the Court, and that the
"purported ratification of the Proposed Constitution ... based on the referendum
among Citizens' Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such unfortunate
drawback notwithstanding, "considering all other related relevant circumstances, ...

the new Constitution is legally recognizable and should be recognized as
legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the issue
whether the Proposed Constitution has been ratified by the people or not, "in the
absence of any judicially discoverable and manageable standards," since the issue
"poses a question of fact.
7. On the question whether or not these cases should be dismissed, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the
affirmative, for the reasons set forth in their respective opinions. Justices Fernando,
Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to
which they voted to grant to the petitioners therein a reasonable period of time
within which to file appropriate pleadings should they wish to contest the legality of
Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said
period to the petitioners in said Case No. L-35948 for the aforementioned purpose,
but he believes, in effect, that the Court should go farther and decide on the merits
everyone of the cases under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its
members, 1with three (3) members dissenting, 2with respect to G.R. No. L-35948,
only and another member 3dissenting, as regards all of the cases dismissed the
same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142
against the Executive Secretary and the Secretaries of National Defense, Justice and
Finance, to restrain said respondents "and their subordinates or agents from
implementing any of the provisions of the propose Constitution not found in the
present Constitution" referring to that of 1935. The petition therein, filed by Josue
Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class
suit, for himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the facts set
forth in the decision in the plebiscite cases, Javellana alleged that the President had
announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in excess
of jurisdiction in implementing the said proposed Constitution" upon the ground:
"that the President, as Commander-in-Chief of the Armed Forces of the Philippines,
is without authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is without
power to proclaim the ratification by the Filipino people of the proposed
Constitution"; and "that the election held to ratify the proposed Constitution was not
a free election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta,
Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo
M. Taada, against the Executive Secretary, the Secretaries of Finance, Justice, Land
Reform, and National Defense, the Auditor General, the Budget Commissioner, the
Chairman of the Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil Service 4 on
February 3, 1973, by Eddie Monteclaro, personally and as President of the National
Press Club of the Philippines, against the Executive Secretary, the Secretary of
Public Information, the Auditor General, the Budget Commissioner and the National
Treasurer 5and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr.,
Leonardo Asodisen, Jr. and Raul M. Gonzales, 6against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga,
Salvador H. Laurel, 7Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly
elected Senator and Minority Floor Leader of the Senate," and others as "duly
elected members" thereof, filed Case G.R. No. L-36165, against the Executive
Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of
the Philippines, the Secretary of General Services, the President and the President
Pro Tempore of the Senate. In their petition as amended on January 26, 1973
petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three of
the aforementioned petitioners 8would expire on December 31, 1975, and that of
the others 9on December 31, 1977; that pursuant to our 1935 Constitution, "which is
still in force Congress of the Philippines "must convene for its 8th Session on
Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its
opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said
petitioner "along with their other colleagues, were unlawfully prevented from using
the Senate Session Hall, the same having been closed by the authorities in physical
possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M.
the said day, the premises of the entire Legislative Building were ordered cleared by
the same authorities, and no one was allowed to enter and have access to said
premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence,
respondent President Pro Tempore Jose Roy we asked by petitioning Senators to
perform their duties under the law and the Rules of the Senate, but unlawfully
refrained and continue to refrain from doing so"; that the petitioners ready and
willing to perform their duties as duly elected members of the Senate of the
Philippines," but respondent Secretary of National Defense, Executive Secretary and
Chief of Staff, "through their agents and representatives, are preventing petitioners
from performing their duties as duly elected Senators of the Philippines"; that "the
Senate premise in the Congress of the Philippines Building ... are occupied by and
are under the physical control of the elements military organizations under the
direction of said respondents"; that, as per "official reports, the Department of
General Services ... is now the civilian agency in custody of the premises of the
Legislative Building"; that respondents "have unlawfully excluded and prevented,
and continue to so exclude and prevent" the petitioners "from the performance of
their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of
the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973

to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and
issued by the President of the Philippines"; that "the alleged creation of the Citizens'
Assemblies as instrumentalities for the ratification of the Constitution of the
Republic of the Philippines" is inherently illegal and palpably unconstitutional; that
respondents Senate President and Senate President Pro Tempore "have unlawfully
refrained and continue to refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as such officers under the law
and the Rules of the Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which reference has been
made in the preceding pages, the Supreme Court dismissed said cases on January
22, 1973, by a majority vote, upon the ground that the petitions therein had
become moot and academic; that the alleged ratification of the 1972 (1973)
Constitution "is illegal, unconstitutional and void and ... can not have superseded
and revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an office to
which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have
unlawfully refrained from convening the Senate for its 8th session, assuming
general jurisdiction over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ of mandamus is warranted in
order to compel them to comply with the duties and functions specifically enjoined
by law"; and that "against the above mentioned unlawful acts of the respondents,
the petitioners have no appeal nor other speedy and adequate remedy in the
ordinary course of law except by invoking the equitable remedies of mandamus and
prohibition with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending
hearing on the merits, a writ of preliminary mandatory injunction be issued ordering
respondents Executive Secretary, the Secretary of National Defense, the Chief of
Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service,
as well as all their agents, representatives and subordinates to vacate the premises
of the Senate of the Philippines and to deliver physical possession of the same to
the President of the Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ... and any order,
decree, proclamation having the same import and objective, issuing writs of
prohibition and mandamus, as prayed for against above-mentioned respondents,
and making the writ injunction permanent; and that a writ of mandamus be issued
against the respondents Gil J. Puyat and Jose Roy directing them to comply with
their duties and functions as President and President Pro Tempore, respectively, of
the Senate of Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions,
respondents filed, with the leave Court first had and obtained, a consolidated
comment on said petitions and/or amended petitions, alleging that the same ought
to have been dismissed outright; controverting petitioners' allegations concerning
the alleged lack impairment of the freedom of the 1971 Constitution Convention to
approve the proposed Constitution, its alleged lack of authority to incorporate

certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or inadequate
submiss of the proposed constitution," the "procedure for ratification adopted ...
through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without
jurisdiction to act on these petitions"; 2) the questions raised therein are "political in
character and therefore nonjusticiable"; 3) "there substantial compliance with
Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying
the results of the election, is conclusive upon the courts"; and 6) "(t)he amending
process outlined in Article XV of the 1935 Constitution is not exclusive of other
modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate
comment therein, alleging that "(t)he subject matter" of said case "is a highly
political question which, under the circumstances, this ...Court would not be in a
position to act upon judicially," and that, in view of the opinions expressed by three
members of this Court in its decision in the plebiscite cases, in effect upholding the
validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236
to comment on the petition therein not later than Saturday, February 10, 1973, and
setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated
February 7, 1973, this Court resolved to consider the comments of the respondents
in cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the
petitions therein, and to set said cases for hearing on the same date and time as L36236. On that date, the parties in G.R. No. L-36283 10agreed that the same be,
likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R.
Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon,
but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the
parties were granted up to February 24, 1973, noon, within which to submit their
notes of oral arguments and additional arguments, as well as the documents
required of them or whose presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the notes filed by their
respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165
filed their aforementioned notes on February 24, 1973, on which date the Solicitor
General sought an extension of time up to March 3, 1973, within which to file his
notes, which was granted, with the understanding that said notes shall include his
reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an extension of time,
to expire on March 10, 1973, within which to file, as they did, their notes in reply to
those submitted by the Solicitor General on March 3, 1973. On March 21, 1973,
petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the
Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners'
Replies."

After deliberating on these cases, the members of the Court agreed that each would
write his own opinion and serve a copy thereof on his colleagues, and this they did.
Subsequently, the Court discussed said opinions and votes were cast thereon. Such
individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the
Court. After the exposition his aforesaid opinion, the writer will make, concurrently
with his colleagues in the Court, a resume of summary of the votes cast by them in
these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy
in G.R. No. L-36165, and, also, by the Solicitor General, is predicated upon the fact
that, in Our decision in the plebiscite cases, Mr. Justice Barredo had expressed the
view that the 1935 Constitution had "pro tanto passed into history" and "been
legitimately supplanted by the Constitution now in force by virtue of Proclamation
No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to act"
in said cases "in the absence of any judicially discoverable and manageable
standards" and because "the access to relevant information is insufficient to assure
the correct determination of the issue," apart from the circumstance that "the new
constitution has been promulgated and great interests have already arisen under it"
and that the political organ of the Government has recognized its provisions;
whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent
evidence ... about the circumstances attending the holding" of the "referendum or
plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully
held" and that, accordingly, he assumed "that what the proclamation (No. 1102)
says on its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and that he
accepted "as a fait accompli that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these
circumstances, "it seems remote or improbable that the necessary eight (8) votes
under the 1935 Constitution, and much less the ten (10) votes required by the 1972
(1973) Constitution, can be obtained for the relief sought in the Amended Petition"
in
G.R.
No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced
publicly, in open court, during the hearing of these cases, that he was and is willing
to be convinced that his aforementioned opinion in the plebiscite cases should be
reconsidered and changed. In effect, he thus declared that he had an open mind in
connection with the cases at bar, and that in deciding the same he would not

necessarily adhere to said opinion if the petitioners herein succeeded in convincing
him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that,
under the 1935 Constitution, eight (8) votes are necessary to declare invalid the
contested Proclamation No. 1102. I do not believe that this assumption is borne out
by any provision of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two thirds of all the members of
the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the
Supreme Court is required only to declare "treaty or law" unconstitutional.
Construing said provision, in a resolution dated September 16, 1949, then Chief
Justice Moran, voicing the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring
the vote of eight Justices to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, "executive order" and "regulation"
were included among those that required for their nullification the vote of
two-thirds of all the members of the Court. But "executive order" and
"regulation" were later deleted from the final draft (Aruego, The Framing of
the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of
six members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8]
votes) requirement, indeed, was made to apply only to treaty and law, because, in
these cases, the participation of the two other departments of the government
the Executive and the Legislative is present, which circumstance is absent in the
case of rules, regulations and executive orders. Indeed, a law (statute) passed by
Congress is subject to the approval or veto of the President, whose disapproval
cannot be overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12A treaty is entered into by the President with the concurrence
of the Senate, 13which is not required in the case of rules, regulations or executive
orders which are exclusive acts of the President. Hence, to nullify the same, a lesser
number of votes is necessary in the Supreme Court than that required to invalidate
a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by
the President, the dictum applies with equal force to executive proclamation, like
said Proclamation No. 1102, inasmuch as the authority to issue the same is
governed by section 63 of the Revised Administrative Code, which provides:
Administrative acts and commands of the (Governor-General) President of the
Philippines touching the organization or mode of operation of the Government
or rearranging or readjusting any of the districts, divisions, parts or ports of

the (Philippine Islands) Philippines and all acts and commands governing the
general performance of duties by public employees or disposing of issues of
general concern shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to
have or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in
an executive proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the
President, executive proclamations are mainly informative and declaratory in
character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in
G.R.
No.
L-36165. 15As consequence, an executive proclamation has no more than "the force
of an executive order," so that, for the Supreme Court to declare such proclamation
unconstitutional, under the 1935 Constitution, the same number of votes needed to
invalidate an executive order, rule or regulation namely, six (6) votes would
suffice.
As regards the applicability of the provisions of the proposed new Constitution,
approved by the 1971 Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious that such question depends
upon whether or not the said new Constitution has been ratified in accordance with
the requirements of the 1935 Constitution, upon the authority of which said
Constitutional Convention was called and approved the proposed Constitution. It is
well settled that the matter of ratification of an amendment to the Constitution
should be settled by applying the provisions of the Constitution in force at the time
of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a
political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his
main defense. In support thereof, he alleges that "petitioners would have this Court
declare as invalid the New Constitution of the Republic" from which he claims
"this Court now derives its authority"; that "nearly 15 million of our body politic from
the age of 15 years have mandated this Constitution to be the New Constitution and
the prospect of unsettling acts done in reliance on it caution against interposition of
the power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New Constitution"; that
"the country's foreign relations are now being conducted in accordance with the
new charter"; that "foreign governments have taken note of it"; that the "plebiscite
cases" are "not precedents for holding questions regarding proposal and ratification
justiciable"; and that "to abstain from judgment on the ultimate issue of
constitutionality is not to abdicate duty."

At the outset, it is obvious to me that We are not being asked to "declare" the new
Constitution invalid. What petitioners dispute is the theory that it has been validly
ratified by the people, especially that they have done so in accordance with Article
XV of the 1935 Constitution. The petitioners maintain that the conclusion reached
by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not
borne out by the whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or "election" required in said Article XV
has not been held; that the Chief Executive has no authority, under the 1935
Constitution, to dispensewith said election or plebiscite; that the proceedings before
the Citizens' Assemblies did not constitute and may not be considered as such
plebiscite; that the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the Philippines from January 10 to
January 15, 1973; and that, in any event, the proceedings in said Assemblies are
null and void as an alleged ratification of the new Constitution proposed by the
1971 Constitutional Convention, not only because of the circumstances under which
said Assemblies had been created and held, but, also, because persons disqualified
to vote under Article V of the Constitution were allowed to participate therein,
because the provisions of our Election Code were not observed in said Assemblies,
because the same were not held under the supervision of the Commission on
Elections, in violation of section 2 of Article X of the 1935 Constitution, and because
the existence of Martial Law and General Order No. 20, withdrawing or suspending
the limited freedom to discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting thereon, particularly a viva
voce, as it was done in many instances, as well as their ability to have a reasonable
knowledge of the contents of the document on which they were allegedly called
upon to express their views.
Referring now more specifically to the issue on whether the new Constitution
proposed by the 1971 Constitutional Convention has been ratified in accordance
with the provisions of Article XV of the 1935 Constitution is a political question or
not, I do not hesitate to state that the answer must be in the negative. Indeed, such
is the position taken by this Court, 17 in an endless line of decisions, too long to
leave any room for possible doubt that said issue is inherently and essentially
justiciable. Such, also, has been the consistent position of the courts of the United
States of America, whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned after that of the
United States. Besides, no plausible reason has, to my mind, been advanced to
warrant a departure from said position, consistently with the form of government
established under said Constitution..
The reasons adduced in support thereof are, however, substantially the same as
those given in support of the political-question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court and
found by it to be legally unsound and constitutionally untenable. As a consequence,
Our decision in the aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis, which gained added weight by its virtual reiteration in the
plebiscite cases.

The reason why the issue under consideration and other issues of similar character
are justiciable, not political, is plain and simple. One of the principal bases of the
non-justiciability of so-called political questions is the principle of separation of
powers characteristic of the Presidential system of government the functions
of which are classified or divided, by reason of their nature, into three (3)
categories, namely: 1) those involving the making of laws, which are allocated to
the legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong
to the executive department; and 3) those dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to courts of justice. Within its
own sphere butonly within such sphere each department is supreme and
independent of the others, and each is devoid of authority, not only to encroach
upon the powers or field of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided that such
acts, measures or decisions are within the area allocated thereto by the
Constitution. 25
This principle of separation of powers under the presidential system goes hand in
hand with the system of checks and balances, under which each department is
vested by the Fundamental Law with some powers to forestall, restrain or arrest a
possible or actual misuse or abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power, his veto power, his
authority to call the Legislature or Congress to special sessions and even to
prescribe or limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof such as the
commission on Appointments may approve or disapprove some appointments
made by the President. It, also, has the power of appropriation, to "define,
prescribe, and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the
Constitution, the "Supreme Court and ... such inferior courts as may be established
by law," may settle or decide with finality, not only justiciable controversies
between private individuals or entities, but, also, disputes or conflicts between a
private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service, when
the latter officer or branch is charged with acting without jurisdiction or in excess
thereof or in violation of law. And so, when a power vested in said officer or branch
of the government is absolute or unqualified, the acts in the exercise of such power
are said to be political in nature, and, consequently, non-justiciable or beyond
judicial review. Otherwise, courts of justice would be arrogating upon themselves a
power conferred by the Constitution upon another branch of the service to the
exclusion of the others. Hence, in Taada v. Cuenco, 26this Court quoted with
approval from In re McConaughy, 27the following:
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no

jurisdiction as the certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment. The question thus
raised is a fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to be finally
settled.
xxx xxxxxx
"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, with discretionary power to act.
See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50
Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am.
St. Rep. 220. Thus theLegislature may in its discretion determine whether it will
pass law or submit a proposed constitutional amendment to the people. The courts
have no judicial control over such matters, not merely becausethey involve political
questions, but because they are matters which the people have by the Constitution
delegated to the Legislature. The Governor may exercise the powers delegated him,
free from judicial control, so long as he observes the laws act within the limits of the
power conferred. Hisdiscretionary acts cannot be controllable, not primarily because
they are of a politics nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under constitutional
government must act accordingly to law and subject its restrictions, and every
departure therefrom or disregard thereof must subject him to that restraining and
controlling power of the people, acting through the agency of the judiciary; for it
must be remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and America, is
necessary, to "the end that the government may be one of laws and not of men "
words which Webster said were the greatest contained in any written constitutional
document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was
hoped, understandable to the laymen, We added that "... the term "political
question" connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy" in matters concerning the government of a State, as a body
politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers
to "those questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the government." It is
concerned with issues dependent upon the wisdom, not legality, of a particular
measure."

Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or conditions
have been met, or the limitations respected, is justiciable or non-political, the crux
of the problem being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations particularly those
prescribed or imposed by the Constitution would be set at naught. What is more,
the judicial inquiry into such issue and the settlement thereof are the main functions
of courts of justice under the Presidential form of government adopted in our 1935
Constitution, and the system of checks and balances, one of its basic predicates. As
a consequence, We have neither the authority nor the discretion to decline passing
upon said issue, but are under the ineluctable obligation made particularly more
exacting and peremptory by our oath, as members of the highest Court of the land,
to support and defend the Constitution to settle it. This explains why, in Miller v.
Johnson, 28it was held that courts have a "duty, rather than a power", to determine
whether another branch of the government has "kept within constitutional limits."
Not satisfied with this postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended as it is in our 1935 Constitution
"then, unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid." 29In fact, this very Court
speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost leaders of
the Convention that drafted the 1935 Constitution declared, as early as July 15,
1936, that "(i)n times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, thejudicialdepartment is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments" of the government. 30
The Solicitor General has invoked Luther v. Borden31in support of his stand that the
issue under consideration is non-justiciable in nature. Neither the factual
background of that case nor the action taken therein by the Federal Supreme Court
has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of
the United States against Borden and others for having forcibly entered into Luther's
house, in Rhode Island, sometime in 1842. The defendants who were in the military
service of said former colony of England, alleged in their defense that they had
acted in obedience to the commands of a superior officer, because Luther and
others were engaged in a conspiracy to overthrow the government by force and the
state had been placed by competent authority under Martial Law. Such authority
was the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution upon
secession from England Rhode Island retained its form of government under a
British Charter, making only such alterations, by acts of the Legislature, as were
necessary to adapt it to its subsequent condition as an independent state. It was
under this form of government when Rhode Island joined other American states in
the Declaration of Independence and, by subsequently ratifying the Constitution of

the United States, became a member of the Union. In 1843, it adopted a new
Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter
government. Memorials addressed by them to the Legislature having failed to bring
about the desired effect, meetings were held and associations formed by those
who belonged to this segment of the population which eventually resulted in a
convention called for the drafting of a new Constitution to be submitted to the
people for their adoption or rejection. The convention was not authorized by any law
of the existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the votes cast
by them, the convention declared that said Constitution had been adopted and
ratified by a majority of the people and became the paramount law and Constitution
of Rhode Island.
The charter government, which was supported by a large number of citizens of the
state, contested, however, the validity of said proceedings. This notwithstanding,
one Thomas W. Dorr, who had been elected governor under the new Constitution of
the rebels, prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government passed an Act
declaring the state under Martial Law and adopted measures to repel the
threatened attack and subdue the rebels. This was the state of affairs when the
defendants, who were in the military service of the charter government and were to
arrest Luther, for engaging in the support of the rebel government which was
never able to exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own convention
to revise the existing form of government. Eventually, a new constitution was
drafted by a convention held under the authority of the charter government, and
thereafter was adopted and ratified by the people. "(T)he times and places at which
the votes were to be given, the persons who were to receive and return them, and
the qualifications of the voters having all been previously authorized and provided
for by law passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May 1843,
which had been in operationuninterruptedlysince then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made
an unsuccessful attempt to take possession of the state arsenal in Providence, but
he was repulsed, and, after an "assemblage of some hundreds of armed men under
his command at Chepatchet in the June following, which dispersed upon approach of
the troops of the old government, no further effort was made to establish" his
government. "... until the Constitution of 1843" adopted under the auspices of
the charter government "went into operation, the charter government continued
to assert its authority and exercise its powers and to enforce obedience throughout
the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had
been ratified by the majority of the people, which the Circuit Court rejected, apart

from rendering judgment for the defendants, the plaintiff took the case for review to
the Federal Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority of
State decisions, that the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The judges who decided that case
held their authority under that constitution and it is admitted on all hands
that it was adopted by the people of the State, and is the lawful and
established government. It is the decision, therefore, of a State court, whose
judicial authority to decide upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy, although the government
under which it acted was framed and adopted under the sanction and laws of
the charter government.
The point, then, raised here has been already decided by the courts of Rhode
Island. The question relates, altogether, to the constitution and laws of that State,
and the well settled rule in this court is, that the courts of the United States adopt
and follow the decisions of the State courts in questions which concern merely the
constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the
courts of Rhode Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States which do not belong to
the State courts. But the power of determining that a State government has been
lawfully established, which the courts of the State disown and repudiate, is not one
of them. Upon such a question the courts of the United States are bound to follow
the decisions of the State tribunals, and must therefore regard the charter
government as the lawful and established government during the time of this
contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was
decided is basically and fundamentally different from that of the cases at bar. To
begin with, the case did not involve a federal question, but one purely municipal in
nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the
State tribunals" of Rhode Island upholding the constitution adopted under the
authority of the charter government. Whatever else was said in that case
constitutes, therefore, an obiter dictum. Besides, no decision analogous to that
rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the
states of the Union have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of government,
under which our local governments derive their authority from the national
government. Again,unlike our 1935 Constitution, the charter or organic law of
Rhode Island contained no provision on the manner, procedure or conditions for its
amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition
of government, than on recognition of constitution, and there is a fundamental
difference between these two (2) types of recognition, the first being generally

conceded to be a political question, whereas the nature of the latter depends upon
a number of factors, one of them being whether the new Constitution has been
adopted in the manner prescribed in the Constitution in force at the time of the
purported ratification of the former, which is essentially a justiciable question. There
was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic
to each other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government whose
Executive Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has been
ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden,
decided in 1849, on matters otherthan those referring to its power to review
decisions of a state court concerning the constitution and government ofthat state,
not the Federal Constitution or Government, are manifestly neither, controlling, nor
even persuasive in the present cases, having as the Federal Supreme Court
admitted no authority whatsoever to pass upon such matters or to review
decisions of said state court thereon. In fact, referring to that case, the Supreme
Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert
that the courts have no power to determine questions of a political character.
It is interesting historically, but it has not the slightest application to the case
at bar. When carefully analyzed, it appears that it merely determines that the
federal courts will accept as final and controlling a decision of the highest
court of a state upon a question of the construction of the Constitution of the
state. ... . 33
Baker v. Carr, 34cited by respondents, involved an action to annul a Tennessee
statute apportioning the seats in the General Assembly among the counties of the
State, upon the theory that the legislation violated the equal protection clause. A
district court dismissed the case upon the ground, among others, that the issue was
a political one, but, after a painstaking review of the jurisprudence on the matter,
the Federal Supreme Court reversed the appealed decision and held that said issue
was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in
any measure been committed by the Constitution to another branch of government,
or whether the action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35the same Court, speaking through then Chief
Justice Warren, reversed a decision of the Court of Appeals of New York affirming
that of a Federal District Court, dismissing Powell's action for a declaratory
judgment declaring thereunder that he whose qualifications were uncontested
had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was
predicated upon the ground, inter alia, that the issue was political, but the Federal
Supreme Court held that it was clearly a justiciable one.

The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We
append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a
constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There can be
little doubt that the consensus of judicial opinion is to the effect that it is the
absolute dutyof the judiciary to determine whether the Constitution has been
amended in the manner required by the Constitution, unless a special
tribunal has been created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to illegally amend the
organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution
prescribes the method or procedure for its amendment, it is clear to my mind that
the question whether or not the revised Constitution drafted by the 1971
Constitutional Convention has been ratified in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only subject to judicial
inquiry, but, also, that it is the Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the
courts cannot reject as 'no law suit' " because it allegedly involves a political
question "a bona fide controversy as to whether some action denominated
"political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to said Art.
XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through which,
respondents maintain, the proposed new Constitution has been ratified; that said
Assemblies "are without power to approve the proposed Constitution"; 3) that the
President "is without power to proclaim the ratification by the Filipino people of the
proposed Constitution"; and 4) that "the election held (in the Citizens' Assemblies)
to ratify the proposed Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the
petitioners in L-36164 contend: 1) that the President "has no power to call a
plebiscite for the ratification or rejection" of the proposed new Constitution or "to
appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or
revised Constitution "is vague and incomplete," as well as "contains provisions
which are beyond the powers of the 1971 Convention to enact," thereby rendering it
"unfit for ... submission the people;" 3) that "(t)he period of time between November
1972 when the 1972 draft was approved and January 11-15, 1973," when the
Citizens' Assemblies supposedly ratified said draft, "was too short, worse still, there

was practically no time for the Citizens' Assemblies to discuss the merits of the
Constitution which the majority of them have not read a which they never knew
would be submitted to them ratification until they were asked the question "do
you approve of the New Constitution?" during the said days of the voting"; and that
"(t)here was altogether no freedom discussion and no opportunity to concentrate on
the matter submitted to them when the 1972 draft was supposedly submitted to the
Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1)
"(w)ith a government-controlled press, there can never be a fair and proper
submission of the proposed Constitution to the people"; and 2) Proclamation No.
1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the
1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in
the above-mentioned cases, the petitioners in L-36283 argue that "(t)he creation of
the Citizens' Assemblies as the vehicle for the ratification of the Constitution was a
deception upon the people since the President announced the postponement of the
January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view
have already been set forth earlier in this opinion. Hence, it is unnecessary to
reproduce them here. So it is, with respect to the positions taken in L-36165 by
counsel for therein respondents Gil J. Puyat and Jose Roy although more will be
said later about them and by the Solicitor General, on behalf of the other
respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a
convention called for that purpose, "by a vote of three-fourths of all the Members of
the Senate and the House of Representatives voting separately," but "in joint
session assembled";
2. That such amendments be "submitted to the people for their ratification" at an
"election"; and
3. That such amendments be "approved by a majority of the votes cast" in said
election.
Compliance with the first requirement is virtually conceded, although the petitioners
in L-36164 question the authority of the 1971 Constitutional Convention to
incorporate certain provisions into the draft of the new or revised Constitution. The
main issue in these five (5) cases hinges, therefore, on whether or not the last two
(2) requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the
people for their ratification conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections"
must, also, be taken into account, namely, section I of Art. V and Art. X of said
Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall extend the right
of suffrage to women, if in a plebiscite which shall be held for that purpose
within two years after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed
of a Chairman and two other Members to be appointed by the President with
the consent of the Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. ...
xxx xxxxxx
Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections and shall exercise
all other functions which may be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions, affecting elections,
including the determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so required
by the Commission, shall act as its deputiesfor the purpose of insuring fee, orderly,
and honest elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
xxx xxxxxx39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon
the exercise of the right of suffrage. They claim that no other persons than "citizens
of the Philippines not otherwise disqualified by law, who are twenty-one years of
age or over and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose to vote for at
least six months preceding the election," may exercise the right of suffrage in the
Philippines. Upon the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the aforementioned
qualifications and none of the disqualifications, prescribed by law, and that said
right may be vested by competent authorities in personslackingsome or all of the
aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of the

language "(s)uffrage may be exercised" used in section 1 of Art. V of the
Constitution, and the provisions of the Revised Barrio Charter, Republic Act No.
3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio assembly
members, shall be members thereof and may participate as such in the plebiscites
prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares
who may exercise the right of suffrage, so that those lacking the qualifications
therein prescribed may not exercise such right. This view is borne out by the records
of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section
1 of Art. V of the 1935 Constitution was largely based on the report of the
committee on suffrage of the Convention that drafted said Constitution which report
was, in turn, "strongly influenced by the election laws then in force in the Philippines
... ." 40" Said committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should be limited to
those who could read and write." 3) "That the duty to vote should be
madeobligatory." It appears that the first recommendation was discussed
extensively in the Convention, and that, by way of compromise, it was eventually
agreed to include, in section 1 of Art. V of the Constitution, the second sentence
thereof imposing upon the National Assembly established by the original
Constitution instead of the bicameral Congress subsequently created by
amendment said Constitution the duty to "extend the right of suffrage women, if
in a plebiscite to, be held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather
extensively, after which it was rejected by the Convention. 42This accounts, in my
opinion, for the permissive language used in the first sentence of said Art. V.
Despite some debates on the age qualification amendment having been
proposed to reduce the same to 18 or 20, which were rejected, and the residence
qualification, as well as the disqualifications to the exercise of the right of suffrage
the second recommendation limiting the right of suffrage to those who could
"read and write" was in the language of Dr. Jose M. Aruego, one of the Delegates
to said Convention "readily approved in the Convention without any dissenting
vote," although there was some debate on whether the Fundamental Law should
specify the language or dialect that the voter could read and write, which was
decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision
under consideration was meant to be and is a grant or conferment of a right to
persons possessing the qualifications and none of the disqualifications therein
mentioned, which in turn, constitute a limitation of or restriction to said right, and
cannot, accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is necessarily a
negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant and, in this sense only, may the same

partake of the nature of a guarantee. But, this does not imply not even remotely,
that the Fundamental Law allows Congress or anybody else to vest in those lacking
the qualifications and having the disqualifications mentioned in the Constitution the
right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the
adoption of section 1 of Art. V of the Constitution was "strongly influenced by the
election laws then in force in the Philippines." Our first Election Law was Act 1582,
passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726
and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as
chapter 20 thereof, and then in the Administrative Code of 1917 Act 2711 as
chapter 18 thereof, which, in turn, was amended by Act 3387, approved on
December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualifications for and disqualifications from voting, are quoted
below. 44In all of these legislative acts, the provisions concerning the qualifications
of voters partook of the nature of a grant or recognition of the right of suffrage, and,
hence, of adenial thereof to those who lacked the requisite qualification and
possessed any of the statutory disqualifications. In short, the history of section 1,
Art. V of the Constitution, shows beyond doubt than the same conferred not
guaranteed the authority to persons having the qualifications prescribed therein
and none of disqualifications to be specified in ordinary laws and, necessary
implication, denied such right to those lacking any said qualifications, or having any
of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention
sought the submission to a plebiscite of a "partial amendment" to said section 1 of
Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21)
years to eighteen (18) years, which, however, did not materialize on account of the
decision of this Court in Tolentino v. Commission on Elections, 45granting the writs,
of prohibition and injunction therein applied for, upon the ground that, under the
Constitution, all of the amendments adopted by the Convention should be
submitted in "an election" or a single election, not separately or in several or
distinct elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial amendment" of said
section 1, which could be amended further, after its ratification, had the same taken
place, so that the aforementioned partial amendment was, for legal purposes, no
more than a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that, under the
1935 Constitution, persons below twenty-one (21) years of age could not exercise
the right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a debatable
one. Indeed, there seems to be a conflict between the last paragraph of said section
6 of Rep. Act No. 3590, 46pursuant to which the "majority vote of all the barrio
assembly members" (which include all barrio residents 18 years of age or over, duly
registered in the list of barrio assembly members) is necessary for the approval, in
an assembly plebiscite, of "any budgetary, supplemental appropriations or special

tax ordinances," whereas, according to the paragraph preceding the penultimate
one of said section, 47"(a)ll duly registered barrio assembly membersqualified to
vote" who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election, duly registered in
the list of voters" and " otherwise disqualified ..." just like the provisions of
present and past election codes of the Philippines and Art. V of the 1935
Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21year-old members of the assembly, not only because this interpretation is in accord
with Art. V the Constitution, but, also, because provisions of a Constitution
particularly of a written and rigid one, like ours generally accorded a mandatory
status unless the intention to the contrary is manifest, which is not so as regards
said Art. V for otherwise they would not have been considered sufficiently
important to be included in the Fundamental Law of the land. 48Besides, it would be
illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to favorable action of the
barrio council the approval of barrio assembly through a plebiscite, lesser
qualifications than those prescribed in dealing with ordinary measures for which
such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended
section 1 of Art. V thereof to applyonly to elections of public officers, not to
plebiscites for the ratification of amendments to the Fundamental Law or revision
thereof, or of an entirely new Constitution, and permit the legislature to require
lesser qualifications for such ratification, notwithstanding the fact that the object
thereof much more important if not fundamental, such as the basic changes
introduced in the draft of the revised Constitution adopted by the 1971
Constitutional Convention, which a intended to be in force permanently, or, at least,
for many decades, and to affect the way of life of the nation and, accordingly,
demands greater experience and maturity on the part of the electorate than that
required for the election of public officers, 49whose average term ranges from 2 to 6
years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless
of whether or not they possessed the other qualifications laid down in both the
Constitution and the present Election Code, 50and of whether or not they are
disqualified under the provisions of said Constitution and Code, 51or those of
Republic Act No. 3590, 52have participated and voted in the Citizens' Assemblies
that have allegedly ratified the new or revised Constitution drafted by the 1971
Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21
years of age or over in the entire Philippines, available in January 1973, was less
than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 "members of all
the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against ... 743,869 who voted for its rejection," whereas, on the

question whether or not the people still wanted a plebiscite to be called to ratify the
new Constitution, "... 14,298,814 answered that there was no need for a plebiscite
and that the vote of the Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite." In other words, it is conceded that the number of people who
allegedly voted at the Citizens' Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We
have more to say on this point in subsequent pages were fundamentally
irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V
of the Constitution were allowed to vote in said Assemblies. And, since there is no
means by which the invalid votes of those less than 21 years of age can be
separated or segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be exercised ...
in a case where it is impossible to ascertain with reasonable certainty the true
vote," as where "it is impossible to separate the legal votes from the illegal or
spurious ... ." 54
In Usman v. Commission on Elections, et al.,
55
We held:
Several circumstances, defying exact description and dependent mainly on

the factual milieu of the particular controversy, have the effect of destroying
the integrity and authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the affected or
interested parties, stamp the election returns with the indelible mark of
falsity and irregularity, and, consequently, of unreliability, and justify their
exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a
proposed amendment to the Fundamental Law to be "valid" as part thereof, and the
term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners,
65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots
cast." 56
The word "cast" is defined as "to deposit formally or officially."
57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ...
The word "cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the
choice of the voter on the measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices made on
ballots not orally or by raising by the persons taking part in plebiscites. This is
but natural and logical, for, since the early years of the American regime, we had
adopted the Australian Ballot System, with its major characteristics, namely,

uniform official ballotsprepared and furnished by the Government and secrecy in the
voting, with the advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection of
proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in
the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable;
essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art.
X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here
shall be an independent Commission on Elections ... ." The point to be stressed here
is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the
Commission, would it have been depends upon either Congress or the Judiciary?
The answer must be the negative, because the functions of the Commission
"enforcement and administration" of election laws are neither legislative nor
judicial in nature, and, hence, beyond the field allocated to either Congress or
courts of justice. Said functions are by their nature essentially executive, for which
reason, the Commission would be under the "control" of the President, pursuant to
section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not
explicitly declare that it (the Commission) is an "independent" body. In other words,
in amending the original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission independent
principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on
Elections as a constitutional organ, election laws in the Philippines were enforced by
the then Department of the Interior, through its Executive Bureau, one of the offices
under the supervision and control of said Department. The same like other
departments of the Executive Branch of the Government was, in turn, under the
control of the Chief Executive, before the adoption of the 1935 Constitution, and
had been until the abolition of said Department, sometime ago under the
control of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of control
over the Department of the Interior and its Executive Bureau as to place the
minority party at such a great, if not decisive, disadvantage, as to deprive it, in
effect, of the opportunity to defeat the political party in power, and, hence, to
enable the same to perpetuate itself therein. To forestall this possibility, the original
1935 Constitution was amended by the establishment of the Commission on
Elections as a constitutional body independent primarily of the President of the
Philippines.
The independence of the Commission was sought to be strengthened by the long
term of office of its members nine (9) years, except those first appointed 59 the
longest under the Constitution, second only to that of the Auditor General 60; by
providing that they may not be removed from office except by impeachment,

placing them, in this respect, on the same plane as the President, the VicePresident, the Justices of the Supreme Court and the Auditor General; that they may
not be reappointed; that their salaries, "shall be neither increased nor diminished
during their term of office"; that the decisions the Commission "shall be subject to
review by the Supreme Court" only 61; that "(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission" 62; and, that its chairman and members "shall
not, during the continuance in office, engage in the practice of any profession or
intervene, directly or indirectly, in the management or control of any private
enterprise which in anyway may affected by the functions of their office; nor shall
they, directly or indirectly, be financially interested in any contract with the
Government or any subdivision or instrumentality thereof." 63Thus, the framers of
the amendment to the original Constitution of 1935 endeavored to do everything
possible protect and insure the independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that
"(t)he Commission on Elections shall have exclusive charge of the enforcement and
administration all laws relative to the conduct of elections," apart from such other
"functions which may be conferred upon it by law." It further provides that the
Commission "shall decide, save those involving the right to vote, all administrative
question affecting elections, including the determination of the number and location
of polling places, and the appointment of election inspectors and of other election
officials." And, to forests possible conflicts or frictions between the Commission, on
one hand, and the other offices or agencies of the executive department, on the
other, said section 2 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the Commission, shall act
as its deputies for the purpose of insuring free, orderly, and honest elections." Not
satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of
the Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act
No. 6388, otherwise known as the Election Code of 1971, implements the
constitutional powers of the Commission on Elections and grants additional powers
thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted
below. 64Moreover, said Act contains, inter alia, detailed provisions regulating
contributions and other (corrupt) practices; the establishment of election precincts;
the designation and arrangement of polling places, including voting booths, to
protect the secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion in, or
exclusion or cancellation from said list and the publication thereof; the
establishment of municipal, provincial and files of registered voters; the composition
and appointment of board of election inspectors; the particulars of the official
ballots to be used and the precautions to be taken to insure authenticity thereof;
the procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation and
disposition of election returns; the constitution and operation of municipal,
provincials and national boards of canvassers; the presentation of the political

parties and/or their candidates in each election precinct; the proclamation of the
results, including, in the case of election of public officers, election contests; and the
jurisdiction of courts of justice in cases of violation of the provisions of said Election
Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed
at "insuring free, orderly, and honest election," as envisaged in section 2 of Art. X of
the Constitution. Yet, none of the foregoing constitutional and statutory provisions
was followed by the so-called Barangays or Citizens' Assemblies. And no reasons
have been given, or even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving the electorate of the
right to vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the same was of
utmost importance, owing to theexistence of Martial Law.
In Glen v. Gnau, 65involving the casting of many votes, openly, without complying
with the requirements of the law pertinent thereto, it was held that the "election
officers" involved "cannot be too strongly condemned" therefor and that if they
"could legally dispense with such requirement ... they could with equal propriety
dispense with all of them, including the one that the vote shall be by secret ballot,
or
even
by
ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed
Constitution drafted by the 1971 Constitutional Convention, or on December 1,
1972, Presidential Decree No. 73 (on the validity of which which was contested in
the plebiscite cases, as well as in the 1972 habeas corpus cases 66 We need not,
in the case of bar, express any opinion) was issued, calling a plebiscite, to be held
on January 15, 1973, at which the proposed Constitution would be submitted to the
people for ratification or rejection; directing the publication of said proposed
Constitution; and declaring, inter alia, that "(t)he provision of the Election Code of
1971, insofar as they are not inconsistent" with said decree excepting those
"regarding right and obligations of political parties and candidates" "shall apply to
the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971
provides that "(a)ll elections of public officers except barrio officials and plebiscites
shall be conducted in the manner provided by this Code." General Order No. 20,
dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to
be held on January 15, 1973," said nothing about the procedure to be followed in
plebiscite to take place at such notice, and no other order or decree has been
brought to Our attention, expressly or impliedly repealing the provisions of
Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow free public
discussion of proposed Constitution ... temporarily suspending effects of
Proclamation No. 1081 for the purposes of free open dabate on the proposed
Constitution ... ." This specific mention of the portions of the decrees or orders or
instructions suspended by General Order No. 20 necessarily implies that all other

portions of said decrees, orders or instructions and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite
for ratification or rejection of the proposed Constitution remained in force,
assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is
quoted below 67 the Executive declared, inter alia, that the collective views
expressed in the Citizens' Assemblies "shall be considered in the formulation of
national policies or programs and, wherever practicable, shall be translated into
concrete and specific decision"; that such Citizens' Assemblies "shall consider vital
national issues ... like the holding of the plebiscite on the new Constitution ... and
others in the future, which shall serve as guide or basis for action or decision by the
national government"; and that the Citizens' Assemblies "shall conduct between
January 10 and 15, 1973, a referendum on important national issues, including
those specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the
Commission on Elections or its participation in the proceedings in said Assemblies, if
the same had been intended to constitute the "election" or Plebiscite required Art. V
of the 1935 Constitution. The provision of Decree No. 86-A directing the immediate
submission of the result thereof to the Department of Local Governments
Community Development is not necessarily inconsistent with, and must be
subordinate to the constitutional power of the Commission on Elections to exercise
its "exclusive authority over the enforcement and administration of all laws to the
conduct of elections," if the proceedings in the Assemblies would partake of the
nature of an "election" or plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential
Decree No. 86-B, dated 1973, ordering "that important national issues shall from
time to time; be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the
initial referendum include the matter of ratification of the Constitution by the 1971
Constitutional Convention" and that "(t)he Secretary of the Department of Local
Governments and Community Development shall insure the implementation of this
order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by the 1935
Constitution in the Commission on Elections, even if the Executive had the authority
to repeal Art. X of our Fundamental Law which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the
intervention of the Commission on Elections, and without complying with the
provisions of the Election Code of 1971 or even of those of Presidential Decree No.
73. What is more, they were held under the supervision of the very officers and
agencies of the Executive Department sought to be excluded therefrom by Art. X of
the 1935 Constitution. Worse still, said officers and agencies of the 1935

Constitution would be favored thereby, owing to the practical indefinite extension of
their respective terms of office in consequence of section 9 of the Transitory
Provisions, found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there is no
reasonable means of checking the accuracy of the returns files by the officers who
conducted said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as amended, to insure
the "free, orderly, and honest" expression of the people's will, the aforementioned
violation thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have
ratified the revised Constitution proposed by the 1971 Constitutional Convention.
"... (a)ll the authorities agree that the legal definition of an election, as well as that
which is usually and ordinarily understood by the term, is a choosing or as election
by those having a right to participate (in the selection) of those who shall fill the
offices, or of the adoption or rejection of any public measure affecting the territory
involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v.
Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law
Dictionary. 68
IV
Has
the
proposed
been
approved
by
a
Citizens'
Assemblies
throughout the Philippines?
Constitution
majority
of
allegedly
aforementioned
the
people
in
held
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the
validity of which is precisely being contested by petitioners herein. Respondents
claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled
to full faith and credence, as an enrolled bill; that the proposed Constitution has
been, in fact, ratified, approved or adopted by the "overwhelming" majority of the
people; that Art. XV of the 1935 Constitution has thus been "substancially" complied
with; and that the Court refrain from passing upon the validity of Proclamation No.
1102, not only because such question is political in nature, but, also, because
should the Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the
very premise on which it is predicated, and which, moreover, is contested by the
petitioners. As the Supreme Court of Minnessota has aptly put it
... every officer under a constitutional government must act according to law
and subject to its restrictions, and every departure therefrom or disregard
thereof must subject him to the restraining and controlling of the people,
acting through the agency of the judiciary; for it must be remembered that
the people act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other, and the

judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the
limits of his authority when he certified in Proclamation No. 1102 "that the
Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge
of the data he certified in said proclamation. Moreover, Art. X of the 1935
Constitution was precisely inserted to place beyond the Executive the power to
supervise or even exercise any authority whatsoever over "all laws relative to the
conduct of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed
amendment, or revision of the Fundamental Law, since the proceedings for the
latter are, also, referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had been
informed that there was in each municipality a municipal association of presidents
of the citizens' assemblies for each barrio of the municipality; that the president of
each such municipal association formed part of a provincial or city association of
presidents of such municipal associations; that the president of each one of these
provincial or city associations in turn formed part of a National Association or
Federation of Presidents of such Provincial or City Associations; and that one
Francisco Cruz from Pasig, Rizal, as President of said National Association or
Federation, reported to the President of the Philippines, in the morning of January
17, 1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further intimated
that the said municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding Provincial
Association, which, in turn, transmitted the results of the voting in the to the
Department of Local Governments and Community Development, which tabulated
the results of the voting in the citizens' assemblies throughout the Philippines and
then turned them over to Mr. Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of Governments and
Community Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio
council since 1972, so that he could possibly have been a member on January 17,
1973, of a municipal association of presidents of barrio or ward citizens' assemblies,
much less of a Provincial, City or National Association or Federation of Presidents of
any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in
the resolution of this Court of same date, the Solicitor General was asked to submit,

together with his notes on his oral argument, a true copy of aforementioned report
of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order,
regulation or circular, if any, creating or directing or authorizing creation,
establishment or organization" of said municipal, provincial and national
associations, but neither a copy of alleged report to the President, nor a copy of any
"(p)roclamation, decree, instruction, order, regulation or circular," has been
submitted to this Court. In the absence of said report, "(p)roclamation, decree,
instruction," etc., Proclamation No. 1102 is devoid of any factual and
legalfoundation. Hence, the conclusion set forth in the dispositive portion of said
Proclamation No. 1102, to the effect that the proposed new or revised Constitution
had been ratified by majority of the votes cast by the people, can not possibly have
any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it
were, acts of the Executive and those of Congress could not possibly be annulled or
invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution
of Congress declaring that a given person has been elected President or VicePresident of the Philippines as provided in the Constitution, 69is not conclusive upon
the courts. It is no more than prima facieevidence of what is attested to by said
resolution. 70If assailed directly in appropriate proceedings, such as an election
protest, if and when authorized by law, as it is in the Philippines, the Court may
receive evidence and declare, in accordance therewith, who was duly elected to the
office involved. 71If prior to the creation of the Presidential Electoral Tribunal, no
such protest could be filed, it was not because the resolution of Congress declaring
who had been elected President or Vice-President was conclusive upon courts of
justice, but because there was no law permitting the filing of such protest and
declaring what court or body would hear and decide the same. So, too, a
declaration to the effect that a given amendment to the Constitution or revised or
new Constitution has been ratified by a majority of the votes cast therefor, may be
duly assailedin court and be the object of judicial inquiry, in direct proceedings
therefor such as the cases at bar and the issue raised therein may and should
be decided in accordance with the evidence presented.
The case of In re McConaughy 72is squarely in point. "As the Constitution stood from
the organization of the state" of Minnessota "all taxes were required to be
raised under the system known as the 'general property tax.' Dissatisfaction with
the results of this method and the development of more scientific and satisfactory
methods of raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall be uniform
upon the same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by the
state canvassing board and proclaimed by the Governor as having been legally
adopted. Acting upon the assumption that the amendment had become a part of
the Constitution, the Legislature enacted statutes providing for a State Tax
Commission and a mortgage registry tax, and the latter statute, upon the same
theory, was held constitutional" by said Court. "The district court found that the

amendment had no in fact been adopted, and on this appeal" the Supreme Court
was "required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created
by the Legislature and of theproclamationmade by the Governor based thereon, the
Court held: "It will be noted that this board does no more than tabulate the reports
received from the various county board and add up and certify the results. State v.
Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the
decisions of election officers, and canvassing boards are not conclusive and that the
final decision must rest with the courts, unless the law declares that the decisions of
the board shall be final" and there is no such law in the cases at bar. "... The
correctness of the conclusion of the state board rests upon the correctness of the
returns made by the county boards and it isinconceivablethat it was intended that
this statement of result should be final and conclusive regardless of the actual facts.
The proclamation of the Governor adds nothing in the way of conclusiveness to the
legal effect of the action of the canvassing board. Its purpose is to formally notify
the people of the state of the result of the voting as found by the canvassing board.
James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73the Court reviewed the statement of results of the election made
by the canvassing board, in order that the true results could be judicially
determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of
the Commission on Elections, "the enforcement and administration of all laws
relative to the conduct of elections," independently of the Executive, and there is
not even a certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from the fact that
on January 17, 1973 neither the alleged president of the Federation of Provincial or
City Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the Philippines it
follows necessarily that, from a constitutional and legal viewpoint, Proclamation No.
1102 is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in
the discussion of the preceding topic, the new or revised Constitution proposed by
the 1971 Constitutional Convention was not ratified in accordance with the
provisions of the 1935 Constitution. In fact, it has not even been, ratified in
accordance with said proposed Constitution, the minimum age requirement therein
for the exercise of the right of suffrage beingeighteen (18) years, apart from the fact
that Art. VI of the proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies. Besides, both the 1935
Constitution and the proposed Constitution require a "majority of the votes cast" in
an election or plebiscite called for the ratification of an amendment or revision of
the first Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing not orally, as it was
in many Citizens' Assemblies. 75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts
openly that Art. XV of the Constitution has not been complied with, and since the
alleged substantial compliance with the requirements thereof partakes of the nature
of a defense set up by the other respondents in these cases, the burden of proving
such defense which, if true, should be within their peculiar knowledge is clearly
on such respondents. Accordingly, if despite the extensive notes and documents
submitted by the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who took part
in the Citizens' Assemblies have assented to the proposed Constitution, the logical
step would be to give due course to these cases, require the respondents to file
their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent
evidence and then proceed to the determination of the issues raised thereby.
Otherwise, we would be placing upon the petitioners the burden of disproving a
defense set up by the respondents, who have not so farestablished the truth of such
defense.
Even more important, and decisive, than the foregoing is the circumstance that
there is ample reason to believe that many, if not most, of the people did not know
that the Citizens' Assemblies were, at the time they were held, plebiscites for the
ratification or rejection of the proposed Constitution. Hence, in Our decision in the
plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order
temporarily suspending the effects of Proclamation No. 1081, for the purpose
of free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. No formal action to this effect was
taken until January 7, 1973, when General Order No. 20 was issued, directing
"that the plebiscite scheduled to be held on January 15, 1973, be postponed
until further notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution.
In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President reportedly
after consultation with, among others, the leaders of Congress and the Commission
on Elections the Court deemed it more imperative to defer its final action on
these cases.

And, apparently, the parties in said cases entertained the same belief, for, on
December 23, 1972 four (4) days after the last hearing of said cases 76 the
President announced the postponement of the plebiscite scheduled by Presidential
Decree No. 73 to be held on January 15, 1973, after consultation with the
Commission on Elections and the leaders of Congress, owing to doubts on the
sufficiency of the time available to translate the proposed Constitution into some
local dialects and to comply with some pre-electoral requirements, as well as to
afford the people a reasonable opportunity to be posted on the contents and
implications of said transcendental document. On January 7, 1973, General Order
No. 20 was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973,
were "plebiscites," in effect, accelerated, according to the theory of the Solicitor
General, for the ratification of the proposed Constitution? If said Assemblies were
meant to be the plebiscites or elections envisaged in Art. XV of the Constitution,
what, then, was the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such assemblies
to believe that the same were not an "election" or plebiscite for the ratification or
adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens'
Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the government?
[Bulletin Today, January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be
called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a
plebiscite for the ratification of a proposed Constitution or of a proposed
amendment thereto. Secondly, neither is the language of question No. 7 "Do you

approve the new Constitution?" One approves "of" the act of another which does
not need such approval for the effectivity of said act, which the first person,
however, finds to be good, wise satisfactory. The approval of the majority of the
votes cast in plebiscite is, however, essential for an amendment to the Constitution
to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies
constituted a plebiscite question No. 8 would have been unnecessary and improper,
regardless of whether question No. 7 were answered affirmatively or negatively. If
the majority of the answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite could be held
thereafter in connection therewith, even if the majority of the answers to question
No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7
were in the negative, neither may another plebiscite be held, even if the majority of
the answers to question No. 8 were in the affirmative. In either case, not more than
one plebiscite could be held for the ratification or rejection of the proposed
Constitution. In short, the insertion of said two (2) questions apart from the other
questions adverted to above indicates strongly that the proceedings therein did
not partake of the nature of a plebiscite or election for the ratification or rejection of
the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has
been approved or adopted by the people in the citizens' assemblies all over the
Philippines, when it is, to my mind, a matter of judicial knowledge that there have
been no such citizens' assemblies in many parts of Manila and suburbs, not to say,
also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of
Bataan, dated January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we undertook in
effecting the referendum on the eleven questions you wanted our people
consulted on and the Summary of Results thereof for each municipality and
for the whole province.
xxx xxxxxx
... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to change
the questions, we urgently suspended all scheduled Citizens Assembly meetings on
that day and called all Mayors, Chiefs of Offices and other government officials to
another conference to discuss with them the new set of guidelines and materials to
be used.
On January 11, ... another instruction from the top was received to include the
original five questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modifications in
our instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us with enough hands

to trouble shoot and implement sudden changes in the instructions anytime and
anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept this new method of government to people
consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled
Citizens' Assembly meetings ..." and call all available officials "... to discuss with
them the new set of guidelines and materials to be used ... ." Then, "on January
11 ... another instruction from the top was received to include the original five
questions among those be discussed and asked in the Citizens' Assembly meetings.
With this latest order, we again had to make modifications in our instructions to all
those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation
showed their preference and readiness to accept the new method of government to
people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the
Bataan officials had still to discuss not put into operation means and ways to
carry out the changing instructions from the top on how to organize the citizens'
assemblies, what to do therein and even what questions or topics to propound or
touch in said assemblies; 2) that the assemblies would involve no more than
consultations or dialogues between people and government not decisions be
made by the people; and 3) that said consultations were aimed only at "shaping up
government policies" and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment of a new or
revised Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as
late as January 11, 1973, one can easily imagine the predicament of the local
officials and people in the remote barrios in northern and southern Luzon, in the
Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the
Court, including those of their immediate families and their household, although
duly registered voters in the area of Greater Manila, were not even notified that
citizens' assemblies would be held in the places where their respective residences
were located. In the Prohibition and Amendment case, 77attention was called to the
"duty cast upon the court of taking judicial cognizance of anything affecting the
existence
and
validity
of
any
law
or
portion
of
the
Constitution ... ." In line with its own pronouncement in another case, the Federal
Supreme Court of the United States stressed, in Baker v. Carr, 78that "a court is not
at liberty to shut its eyes to an obvious mistake, when the validity of the
lawdepends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can
be answered or resolved otherwise than in the negative.

V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run,
since January 17, 1971, under the Constitution drafted by the 1971 Constitutional
Convention; that the political department of the Government has recognized said
revised Constitution; that our foreign relations are being conducted under such new
or revised Constitution; that the Legislative Department has recognized the same;
and that the people, in general, have, by their acts or omissions, indicated their
conformity thereto.
As regards the so-called political organs of the Government, gather that
respondents refer mainly to the offices under the Executive Department. In a sense,
the latter performs some functions which, from a constitutional viewpoint, are
politics in nature, such as in recognizing a new state or government, in accepting
diplomatic representatives accredited to our Government, and even in devising
administrative means and ways to better carry into effect. Acts of Congress which
define the goals or objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve the said goals or delegate
the power to do so, expressly or impliedly, to the Executive. This, notwithstanding,
the political organ of a government that purports to be republican is essentially the
Congress or Legislative Department. Whatever may be the functions allocated to
the Executive Department specially under a written, rigid Constitution with a
republican system of Government like ours the role of that Department is
inherently, basically and fundamentally executive in nature to "take care that the
laws be faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of
the Executive Department, in line with Proclamation No. 1102, connote a
recognition thereof o an acquiescence thereto. Whether they recognized the
proposed Constitution or acquiesce thereto or not is something that cannot legally,
much less necessarily or even normally, be deduced from their acts in accordance
therewith, because the are bound to obey and act in conformity with the orders of
the President, under whose "control" they are, pursuant to the 1935 Constitution.
They have absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very decrees,
orders and instructions issued by the President thereafter, he had assumed all
powers of Government although some question his authority to do so and,
consequently, there is hardly anything he has done since the issuance of
Proclamation No. 1102, on January 17, 1973 declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratified by the
overwhelming majority of the people that he could not do under the authority he
claimed to have under Martial Law, since September 21, 1972, except the power of
supervision over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of
Justice has continued to handle, this Court having preferred to maintain the status

quo in connection therewith pending final determination of these cases, in which the
effectivity of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to
have "recognized" its own acts. Recognition normally connotes the acknowledgment
by a party of the acts of another. Accordingly, when a subordinate officer or office of
the Government complies with the commands of a superior officer or office, under
whose supervision and control he or it is, the former merely obeys the latter. Strictly
speaking, and from a legal and constitutional viewpoint, there is no act of
recognition involved therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth80 cited by respondents
herein in support of the theory of the people's acquiescence involved a
constitution ordained in 1902 and "proclaimed by a convention duly called by a
direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work of that Convention has been recognized, accepted and acted
upon as the only valid Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed
thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been
engaged for nearly a year, in legislating under it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing
its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and acquiescing
in it, by registering as voters under it to the extent of thousands throughout the
State, and by voting, under its provisions, at a general election for their
representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members
were elected directly by the people, was not submitted to the people for ratification
or rejection thereof. But, it was recognized, not by the convention itself, but by
other sectors of the Government, namely, the Governor; the Legislature not
merely by individual acts of its members, but by formal joint resolution of its two (2)
chambers; by the judiciary; and by the people, in the various ways specified above.
What is more, there was no martial law. In the present cases, none of the foregoing
acts of acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government, and
complied with by the people who participated in the elections held pursuant to the

provisions of the new Constitution. In the cases under consideration, the legality of
Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was
impugned as early as December 7, 1972, or five (5) weeks before the scheduled
plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified despite General Order No.
20, issued on January 7, 1972, formally and officially suspending the plebiscite until
further notice was impugned as early as January 20, 1973, when L-36142 was
filed, or three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives
and Senate have acquiesced in the new or revised Constitution, by filing written
statements opting to serve in the Ad Interim Assembly established in the Transitory
Provisions of said Constitution. Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies under the government, are invalid
as acts of said legislature or bodies, unless its members have performed said acts in
session duly assembled, or unless the law provides otherwise, and there is no such
law in the Philippines. This is a well-established principle of Administrative Law and
of the Law of Public Officers, and no plausible reason has been adduced to warrant
departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed
Constitution, why did it become necessary to padlock its premises to prevent its
meeting in session on January 22, 1973, and thereafter as provided in the 1935
Constitution? It is true that, theoretically, the members of Congress, if bent on
discharging their functions under said Constitution, could have met in any other
place, the building in which they perform their duties being immaterial to the
legality of their official acts. The force of this argument is, however, offset or
dissipated by the fact that, on or about December 27, 1972, immediately after a
conference between the Executive, on the one hand, and members of Congress, on
the other, some of whom expressed the wish to meet in session on January 22,
1973, as provided in the 1935 Constitution, a Daily Express columnist
(PrimitivoMijares) attributed to Presidential Assistant Guillermo de Vega a statement
to the effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of convening
Congress." The Daily Express of that date, 82likewise, headlined, on its front page, a
"Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in its issue of
December 29, 1972, the same paper imputed to the Executive an appeal "to diverse
groups involved in aconspiracyto undermine" his powers" under martial law to
desist from provoking a constitutional crisis ... which may result in the exercise by
me of authority I have not exercised."
No matter how good the intention behind these statement may have been, the idea
implied therein was too clear anominous for any member of Congress who thought
of organizing, holding or taking part in a session of Congress, not to get the
impression that he could hardly do so without inviting or risking the application of
Martial Law to him. Under these conditions, I do not feel justified in holding that the
failure of the members of Congress to meet since January 22, 1973, was due to their

recognition, acquiescence in or conformity with
aforementioned Constitution, or its alleged ratification.
the
provisions
of
the
For the same reasons, especially because of Proclamation No. 1081, placing the
entire Philippines under Martial Law, neither am I prepared to declare that the
people's inaction as regards Proclamation No. 1102, and their compliance with a
number of Presidential orders, decrees and/or instructions some or many of which
have admittedly had salutary effects issued subsequently thereto amounts,
constitutes or attests to a ratification, adoption or approval of said Proclamation No.
1102. In the words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation." 83The failure to
use the gun against those who comply with the orders of the party wielding the
weapon does not detract from the intimidation that Martial Law necessarily
connotes. It may reflect the good, reasonable and wholesome attitude of the person
who has the gun, either pointed at others, without pulling the trigger, or merely
kept in its holster, but not without warning that he may or would use it if he deemed
it necessary. Still, the intimidation is there, and inaction or obedience of the people,
under these conditions, is not necessarily an act of conformity or acquiescence. This
is specially so when we consider that the masses are, by and large,unfamiliar with
the parliamentary system, the new form of government introduced in the proposed
Constitution, with the particularity that it is not even identical to that existing in
England and other parts of the world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of some provisions
incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to
remember that the same refers to a document certified to the President for his
action under the Constitution by the Senate President and the Speaker of the
House of Representatives, and attested to by the Secretary of the Senate and the
Secretary of the House of Representatives, concerning legislative measures
approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this
extent, it is conclusive upon the President and the judicial branch of the
Government, why should Proclamation No. 1102 merit less consideration than in
enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being
certified by the aforementioned officers of Congress, the so-called enrolled bill were
certified by, say, the President of the Association of Sugar Planters and/or Millers of
the Philippines, and the measure in question were a proposed legislation concerning
Sugar Plantations and Mills sponsored by said Association, which even prepared the
draft of said legislation, as well as lobbied actually for its approval, for which reason
the officers of the Association, particularly, its aforementioned president whose
honesty and integrity are unquestionable were present at the deliberations in
Congress when the same approved the proposed legislation, would the enrolled bill
rule apply thereto? Surely, the answer would have to be in the negative. Why?
Simply, because said Association President has absolutely no official authority to

perform in connection therewith, and, hence, his certification is legally, as good as
non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local
Governments and Community Development about the tabulated results of the
voting in the Citizens Assemblies allegedly held all over the Philippines and the
records do not show that any such certification, to the President of the Philippines or
to the President Federation or National Association of presidents of Provincial
Associations of presidents of municipal association presidents of barrio or ward
assemblies of citizens would not, legally and constitutionally, be worth the paper
on which it is written. Why? Because said Department Secretary is not the officer
designated by law to superintend plebiscites or elections held for the ratification or
rejection of a proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which, according to
Article X of the Constitution, should not and must not be all participate in said
plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84the Highest Court of
the United States that courts "willnot stand impotent before an obvious instance of
a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated
their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure
followed in these five (5) cases. In this connection, it should be noted that the Court
has not decided whether or not to give due course to the petitions herein or to
require the respondents to answer thereto. Instead, it has required the respondents
to comment on the respective petitions with three (3) members of the voting to
dismiss them outright and then considers comments thus submitted by the
respondents as motions to dismiss, as well as set the same for hearing. This was
due to the transcendental nature of the main issue raised, the necessity of deciding
the same with utmost dispatch, and the main defense set up by respondents herein,
namely, the alleged political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and determination. If this defense
was sustained, the cases could readily be dismissed; but, owing to the importance
of the questions involved, a reasoned resolution was demanded by public interest.
At the same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil consequences, it
was claimed, which would result from a decision thereon, if adverse to the
Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases,
which were dismissed as moot and academic, owing to the issuance of Proclamation
No. 1102 subsequently to the filing of said cases, although before the rendition of

judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the
opinion that the aforementioned issues should be settled in said cases, and he,
accordingly, filed an opinion passing upon the merits thereof. On the other hand,
three (3) members of the Court Justices Barredo, Antonio and Esguerra filed
separate opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into history and
has been legitimately supplanted by the Constitution in force by virtue of
Proclamation 1102." 86When the petitions at bar were filed, the same three (3)
members of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view, believing
that the main question that arose before the rendition of said judgment had not
been sufficiently discussed and argued as the nature and importance thereof
demanded.
The parties in the cases at bar were accordingly given every possible opportunity to
do so and to elucidate on and discuss said question. Thus, apart from hearing the
parties in oral argument for five (5) consecutive days morning and afternoon, or a
total of exactly 26 hours and 31 minutes the respective counsel filed extensive
notes on their or arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents filed in
support thereof so numerous and bulky, that, for all intents and purposes, the
situation is as if disregarding forms the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should
express their views on the aforementioned issues as if the same were being decided
on the merits, and they have done so in their individual opinion attached hereto.
Hence, the resume of the votes cast and the tenor of the resolution, in the last
pages hereof, despite the fact that technically the Court has not, as yet, formally
given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for
against Gil J. Puyat and Jose Roy, President and President Pro Tempore respectively
of the Senate, it being settled in our jurisdiction, based upon the theory of
separation of powers, that the judiciary will not issue such writ to the head of a coequal department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as
in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions
therein should be given due course, there being more than prima facie showing that
the proposed Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, either strictly, substantially, or has been acquiesced in by the
people or majority thereof; that said proposed Constitution is not in force and effect;
and that the 1935 Constitution is still the Fundamental Law of the Land, without

prejudice to the submission of said proposed Constitution to the people at a
plebiscite for its ratification or rejection in accordance with Articles V, X and XV of
the 1935 Constitution and the provisions of the Revised Election Code in force at the
time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they
might consider to be the demands of "judicial statesmanship," whatever may be the
meaning of such phrase. I am aware of this possibility, if not probability; but
"judicial statesmanship," though consistent with Rule of Law, cannot prevail over
the latter. Among consistent ends or consistent values, there always is a hierarchy,
a rule of priority.
We must realize that the New Society has many achievements which would have
been very difficult, if not impossible, to accomplish under the old dispensation. But,
in and for the judiciary, statesmanship should not prevail over the Rule of Law.
Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto
are basic, fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual
opinions and/or concurrences as appended hereto, the writer will now make, with
the concurrence of his colleagues, a resume or summary of the votes cast by each
of them.
It should be stated that by virtue of the various approaches and views expressed
during the deliberations, it was agreed to synthesize the basic issues at bar in broad
general terms in five questions for purposes of taking the votes. It was further
agreed of course that each member of the Court would expound in his individual
opinion and/or concurrence his own approach to the stated issues and deal with
them and state (or not) his opinion thereon singly or jointly and with such priority,
qualifications and modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved
are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and
therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been
ratified validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without
valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the
members of the Court in their respect opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court,
hold that the issue of the validity of Proclamation No. 1102 presents a justiciable
and non-political question. Justices Makalintal and Castro did not vote squarely on
this question, but, only inferentially, in their discussion of the second question.
Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has
been approval by the people, the Court may inquire into the question of whether or
not there has actually been such an approval, and, in the affirmative, the Court
should keep hands-off out of respect to the people's will, but, in negative, the Court
may determine from both factual and legal angles whether or not Article XV of the
1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or
three (3) members of the Court hold that the issue is political and "beyond the
ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold
that the Constitution proposed by the 1971 Constitutional Convention was not
validly ratified in accordance with Article XV, section 1 of the 1935 Constitution,
which provides only one way for ratification, i.e., "in an election or plebiscite held in
accordance with law and participated in only by qualified and duly registered voters.
87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973
Constitution has been validly ratified pursuant to Article XV, I still maintain that in
the light of traditional concepts regarding the meaning and intent of said Article, the
referendum in the Citizens' Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements thereof. In view,
however, of the fact that I have no means of refusing to recognize as a judge that
factually there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the political sense, if
not in the orthodox legal sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the part required of them by
Article XV, hence, it may be said that in its political aspect, which is what counts
most, after all, said Article has been substantially complied with, and, in effect, the
1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold
that under their view there has been in effect substantial compliance with the
constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the
aforementioned proposed Constitution, no majority vote has been reached by the
Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra
hold that "the people have already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there
can be no free expression, and there has even been no expression, by the people
qualified to vote all over the Philippines, of their acceptance or repudiation of the
proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is
conceded that the doctrine stated in some American decisions to the effect that
independently of the validity of the ratification, a new Constitution once accepted
acquiesced in by the people must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is the
mind of the people in the absence of the freedom of debate that is a concomitant
feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence
to rule on the question. Justices Makalintal and Castro are joined by Justice
Teehankee in their statement that "Under a regime of martial law, with the free
expression of opinions through the usual media vehicle restricted, (they) have no
means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the
petition. Justice Makalintal and Castro so voted on the strength of their view that
"(T)he effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which considerations other than
judicial, an therefore beyond the competence of this Court, 90are relevant and
unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and
myself voted to deny respondents' motion to dismiss and to give due course to the
petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that it is in force by virtue of the people's acceptance
thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution
is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes
of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the
aforementioned cases are hereby dismissed. This being the vote of the majority,
there is no further judicial obstacle to the new Constitution being considered in force
and effect.
It is so ordered.
Thus, in the aforementioned plebiscite cases, 18We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and We unanimously
declared that the issue was a justiciable one. With identical unanimity, We overruled
the respondents' contention in the 1971 habeas corpus cases, 19questioning Our
authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in Barcelona v.
Baker20and Montenegro v. Castaeda, 21insofar as it adhered to the former case,
which view We, accordingly, abandoned and refused to apply. For the same reason,
We did not apply and expressly modified, in Gonzales v. Commission on Elections,
22
the political-question theory adopted inMabanag v. Lopez Vito. 23Hence,
respondents herein urge Us to reconsider the action thus taken by the Court and to
revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez
Vito. 24
11. OCCENA V. COMELEC

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 MARCOS-IMBONG,
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 Resolutions1 proposing 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." 14 One of such powers is precisely that
of proposing amendments. The 1973 Constitution in its Transitory Provisions vested
the Interim 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,
theInterim Batasang 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 Pambansa as Successor of the Interim National
Assembly. For them, what was done was to revise and not to amend. It suffices to
quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v.
Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the
Constitutional Convention will only propose amendments to the Constitution or
entirely overhaul the present Constitution and propose an entirely new Constitution
based on an Ideology foreign to the democratic system, is of no moment; because
the same will be submitted to the people for ratification. Once ratified by the
sovereign people, there can be no debate about the validity of the new Constitution.
4. The fact that the present Constitution may be revised and replaced with a new
one ... is no argument against the validity of the law because 'amendment' includes

the 'revision' or total overhaul of the entire Constitution. At any rate, whether the
Constitution is merely amended in part or revised or totally changed would become
immaterial the moment the same is ratified by the sovereign people." 19 There is
here the adoption of the principle so well-known in American decisions as well as
legal texts that a constituent body can propose anything but conclude
nothing. 20 We are not disposed to deviate from such a principle not only sound in
theory but also advantageous in practice.
(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 threefourth 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 threefourth 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 is
unavailing. As for the people being adequately informed, it cannot be denied that
this time, as in the cited 1980 Occena opinion of Justice Antonio, where the
amendment restored to seventy the retirement age of members of the judiciary, the
proposed amendments have "been intensively and extensively discussed at
the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it
cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Separate Opinions
TEEHANKEE, J., dissenting:

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 of Tolentino 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 provisions on amendments
"dealing with the procedure or manner of amending the fundamental law are

binding upon the Convention and the other departments of the government (and)
are no less binding upon the people" and "the very Idea of deparcing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to
the essence of the rule of law." The proposed amendments at bar having been
adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976
amendments must necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand inSanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Court prior to the 1973 Constitution which increased the official composition of the
Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by
the required constitutional two-thirds majority vote of the Court (of eight votes,
then) in Tolentino is fully applicable in the case at bar. The three resolutions
proposing complex, complicated and radical amendments of our very structure of
government were considered and approved by the Interim Batasang Pambansa
sitting as a constituent assembly on February 27, 1981. It set the date of the
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and
far short of the ninety-day period fixed by the Constitution for submittal to the
people to "sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" as stated by
retired Justice Conrado V. Sanchez in his separate opinion inGonzales bears
repeating as follows: "... 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 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."'
Separate Opinions
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 of Tolentino 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 provisions on amendments

"dealing with the procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the government (and)
are no less binding upon the people" and "the very Idea of deparcing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to
the essence of the rule of law." The proposed amendments at bar having been
adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976
amendments must necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand inSanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Court prior to the 1973 Constitution which increased the official composition of the
Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by
the required constitutional two-thirds majority vote of the Court (of eight votes,
then) in Tolentino is fully applicable in the case at bar. The three resolutions
proposing complex, complicated and radical amendments of our very structure of
government were considered and approved by the Interim Batasang Pambansa
sitting as a constituent assembly on February 27, 1981. It set the date of the
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and
far short of the ninety-day period fixed by the Constitution for submittal to the
people to "sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" as stated by
retired Justice Conrado V. Sanchez in his separate opinion inGonzales bears
repeating as follows: "... 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 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

be beyond the reach of temporary excitement and popular caprice or passion. It is
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."'
12. PHILIPPINE BAR ASSOCIATION VS COMELEC

December 19, 1985
January 7, 1986
EN BANC
G.R. Nos. 72915, 72922, 72923, 72924, 72927, 72928, 72935, 72954, 72957,
72968 & 72986
RESOLUTION
Gentlemen :
Quoted hereunder, for your information, is a resolution of the Court En
Banc dated, December 19, 1985. ATcEDS

"G.R.
No.
72915
(Philippine Bar Association,
et
al. vs.
The Commission on Elections, et al.); G.R. No. 72922 (Martiniano P. Vivo, et

al. vs. Commission on Elections, et al.); G.R. No. 72923 (MP Aquilino Q. Pimentel,
Jr., et al. vs. The Treasurer of the Philippines, et al.); G.R. No. 72924 (The
Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. [MABINI],
et al. vs. The Commission on Elections, et al.); G.R. No. 72927 (The Liberal Party,
et al. vs. The National Treasurer of the Philippines); G.R. No. 72928 (Concerned
Women of the Philippines, et al. vs. Hon. Maximiano Savellano, et al.); G.R. No.
72935 (Alberto G. Romulo, et al. vs. Commission on Elections, et al.); G.R. No.
72954(Victor
C.
Avecilla,
et
72957 (National Bar Association of
al. vs. Commission on Elections);

the
G.R.
Philippines,
No.
et
al. vs. Commission on Elections, et al.); G.R. No. 72968 (Laban ng Bayan
[LABAN], et al. vs. The Commission onElections, et al.) and G.R. No. 72986 (Juan
T. David vs. The Commission on Elections, et al.). After considering all the
pleadings and deliberating on the issues raised in the petitions as well as on the
oral arguments of the parties and the amici curiae in the hearings held in these
cases, Chief Justice Ramon C. Aquino and six (6) Justices, namely, Justices
Claudio Teehankee, Hermogenes Concepcion, Jr., Vicente Abad Santos, Efren I.
Plana, Venicio T. Escolin and Lorenzo Relova, voted to DISMISS the petitions in
these cases and to DENY the prayer for the issuance of an injunction restraining
respondents from holding the election on February 7, 1986. In the opinion of
Chief Justice Aquino, B.P. 883 is constitutional.
"Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R. Cuevas, Nestor B.
Alampay and Lino M. Patajo voted to DECLARE B.P. 883 unconstitutional and to
grant the injunction prayed for.
"Justice Teehankee is of the opinion that inasmuch as there are less than
ten votes in favor of declaring B.P. Blg. 883 unconstitutional, the petitions in
these cases are hereby dismissed and the writs therein prayed for are denied.
"This is in accordance with the opinion in Gonzales vs. COMELEC, 21 SCRA
802 and Javellana vs. Executive Secretary, 50 SCRA 141.

"Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., de la Fuente,
Alampay and Patajo filed separate opinions.
"This resolution is without prejudice to the filing of separate opinions by
the other Members of this Court.
"At the session of January 7, 1986, the Court noted that its act of
dismissing the petitions had not been formally stated in its basic Resolution of
December 19, 1985. The Court therefore authorizes the insertion of the following
dispositive portion:
'Accordingly, inasmuch as there are less than the required ten (10)
votes to declare Batas Pambansa Bilang 883 unconstitutional, the
petitions in these cases are hereby DISMISSED and the writs therein
prayed for are DENIED.'"
"Chief Justice Aquino is of the opinion that the revision of the December
19, 1985 resolution is totally unnecessary. It is clear. It is understood that the
petitions are dismissed. The public and the Comelec understood that the
petitions were dismissed." ETaSDc
Melencio-Herrera, * J., took no part in all these cases.
Very truly yours,
(SGD.) GLORIA C. PARAS
Clerk of Court
G.R. No. 72915 (PBA ET AL. VS. COMELEC ET AL.) and other
consolidated petitions.
TEEHANKEE, J., concurring:

I vote for the dismissal of the petition for prohibition against enforcement
of BP Blg. 883 on the ground that no clear case has been made of an absolute
void of power and authority that would warrant its nullification and that
prohibition is not a remedy for acts done that can no longer be undone.
The stated issue is quite simple: Is B.P. Blg. 883 calling for special
national elections on February 7, 1986 for the offices of President and VicePresident of the Philippines ( for the first time since the pre-martial era 1969
presidential elections) unconstitutional, and should this Court therefore stop and
prohibit the holding of the elections?
Upon the filing on December 3rd of the lead and other petitions at bar,
four members of the Court (Justices Abad Santos, Relova, Gutierrez, Jr. and
myself) voted per the Court's Resolution of December 5th to issue a temporary
restraining order against enforcement of the Act and to hear the petitions on last
December 12th so as to maintain the status quo and thereafter speedily resolve
the issue and prevent the people's expectations from reaching a point of no
return. Our vote did not gain the required concurrence of a majority of eight.
Instead the Court granted the parties substantial periods for filing of
respondents' comment and petitioners' replies and to hear the case only after
two weeks on December 17th (continued to December 18th) with a clear
consensus to take a vote and resolve the petitions immediately after the
hearing.
It is of public knowledge and record, as pointed out by former VicePresident,
Senator
Pelaez, amicus
and
curiae,
Executive
who
helped
Committee
Member
in
the
drafting
1984
Emmanuel
N.
constitutional
amendments abolishing the Executive Committee and restoring the Office of

Vice-President as the President's successor, that such restoration was not made
effective immediately, but only at the end of the incumbent President's
term on June 30, 1987 in view of his oft-expressed "allergy to vice-presidents."
Hence, Sen. Pelaez submits that the President's letter of conditional "resignation"
(for the word is nowhere used therein) "did not create the actual vacancy

required in Section 9, Article VII of the Constitution which could be the basis of
the holding of a special election for President and Vice-President earlier than the
regular election for such positions in 1987. The letter's intent was obvious: to
circumvent the constitutional provision which would, in effect, require the
President to actually vacate his office in favor of the Speaker who would then be
the Acting President until a new one shall have been elected and shall have
qualified. . . . In prescribing the procedure to fill the office of President in case of
vacancy therein occurred during the term of President Marcos, it [the cited
section] excluded any discretion on the part of the Batasang Pambansa to
legislate on the same subject. In fact, given the very detailed and precise steps
to be taken by the Batasang Pambansa under [the first four paragraphs] for the
purpose of calling a special election to fill the vacancy, there was no room for
legislative action to supplement the same. BP Blg. 883 which is a reproduction of
Cabinet Bill No. 7, is in conflict with the Constitution in that it allows the
President to continue holding office after the calling of the special election. To
put it another way: the President's offer to cut his term short is valid. The trouble
is he does not go far enough: he should actually vacate the office forthwith."
1/ DCISAE
In the interval of over two weeks between December 3rd and now,
supervening facts and events have overtaken the Court and the petitions
at bar so much so that many of the petitions were withdrawn expressly or
abandoned impliedly. The political parties have since chosen and proclaimed
their candidates for president and vice-president and the frenzied campaign is in
full swing. President Ferdinand E. Marcos is quoted as saying: "we have already
spent a lot of energy and money on this thing." 2/ The foremost exponent of the
Act's unconstitutionality, M.P. Arturo Tolentino who strongly held that "Mr. Marcos
is not intended by the Constitution to succeed himself before 1987 for an
additional six years" and that "the President must first resign from office in order
for the constitutional mandate to go into effect and for the Batasan speaker to
assume the post of Acting President" 3/ had laid aside his "personal objections"
against the bill's validity and has accepted the ruling KBL's nomination as vice-

presidential candidate with President Ferdinand E. Marcos as candidate for
reelection in the scheduled February 7, 1986 national elections. The heretofore
divided opposition has unified and likewise presented their standard bearers
Corazon "Cory" Aquino and former Senator Salvador "Doy" Laurel, for president
and vice-president, respectively. President Marcos himself in his letter to the
Batasang Pambansa 4/ "irrevocably vacati(ng) the position of President effective
only when the election is held and after the winner is proclaimed and qualified as
President by taking his oath office ten (10) days after his proclamation" urgently
stresses that "there is no moment to lose", that "I am, therefore, left no choice
but to seek a new mandate in an election that will assess, as demanded by the
opposition, the policies and programs I am undertaking. Such an election
necessarily shortens my tenure. But the necessity arises from no less than the
time-honored principle of public accountability, inherent in a democracy and
explicit in our Constitution" and that the "final settlement of these issues can be
achieved only through a presidential election."
The unified opposition has likewise realized the imperative urgency of
seeking the mandate and verdict of the people. Rather than insist on strict
compliance with the cited constitutional provision that the incumbent President
actually resign, vacate his office and turn it over to the Speaker of the Batasang
Pambansa as Acting President, their standard bearers as the parties most
prejudiced have not filed any suit or petition in intervention for the purpose nor
repudiated the scheduled election. Instead, the unified opposition, including
almost all other political parties of standing, (with the exception of a few who
have lost faith in the electoral process due to past sorry experiences) have
rallied behind the presidential candidacy of Cory Aquino. In short, they have
taken the President at his own terms and conditions and will confront him at the
scheduled February 7, 1986 elections and have not insisted that he vacate the
office of president and its vast powers. As Senator Pelaez reported to the Court:
"(T)he Opposition's answer is firm" they are willing to give the President this
illegal handicap, so long as the election is clean, fair and honest."

The real issue at bar has thus veered from the purely justiciable issue of
the questioned constitutionality of the Act due to the lack of an actual vacancy in
the office of President and transformed itself into a political question that can
only be truly decided by the people in their sovereign capacity in a fair, clean
and honest election. (Javellana vs. Exec. Secretary, 50 SCRA 30). Stated
differently, may this Court at this advanced stage stop the holding of
theelections?
Labor Minister Blas Ople, an articulate KBL spokesman, stressed that the
people's minds have been prepared and conditioned to expect the holding of the
February 7th, 1986 presidential elections and that the Court "from its ivory
tower" should not stand in the way. (This nation-wide perception that the great
majority of the people want to express their will in the special election as the
best chance for democracy's survival is reflected in all sectors of the press, be
they establishment, neutral or opposition.) As reported by the press: "Ople said
the high court, which did not issue a restraining order to stop preparations for
the
special elections,
"will
have
to
take
judicial
notice
of
a fait
accompli the elections are on. He said the KBL, and the opposition have
formed a consensus by deed by nominating their official tickets, campaigning
and spending, while the people 'from whom all sovereignty emanates' have
been conditioned to expect an election. . . . The people and the world, Ople said,
will not believe that the administration did not help influence a court annulment
of the elections, no matter how unfair this charge of interference in judicial
independence might be. Thus, he said, the cancellation of the elections 'can only
aggravate the prevailing crisis and the President may find it difficult to govern
effectively. 'Here and abroad, Ople said, there will be calls for the President to
step down and allow an election under Article 7, Section 9 of the Constitution,
to clear
the
last
remaining
obstacle to an
election which, both sides
now
agree, should be held to 'break a dangerous stalemate in both the political and
economic climates' in the face of 'issues threatening national survival.' Ople said
a political system that calls an election and then calls it off after the momentum
has built up will not be received kindly by the people. An election, he said

'should be treated with respect and the majesty it deserved.' It gives meaning to
the central directing principle of the Constitution that all sovereignty emanates
from the people, he said." 5/ cAHIST
Senator Pelaez formulated the same political question in this wise: "These
supervening events . . . may have converted the snap poll issue into a political
one, which would remove from the Supreme Court the authority to stop present
snap poll activities on its tracks. . . . From the standpoint of constitutional
government, what has recently happened represents a giant step, the biggest
stride yet made by our people in their struggle for the restoration of freedom
and democracy, which were shattered by the declaration of martial law.
Four elections have since been held in 1978 for the interim Batasan Pambansa,
in 1980 for local officials, in 1981 for President, and in 1984 for the present
Batasan. None of these elections could be said to have been truly democratic,
mainly due to the absence of a strong, united opposition. Today, by some
miracle, the Opposition has become united, so that a truly one-on-one contest
for the Presidency can be held and the two-party system has suddenly become a
reality. These are substantial gains that should not be frittered away by
postponing the Presidential and Vice-Presidential election to mid-1987. With
these developments, the issue has been decided by the political will of the
people. This Honorable Court should not put obstacles to their exercise of that
will. Beyond these considerations, national survival depends on the forthcoming
snap poll.
"Then the President goes on to state that the mandate he received from
the people in 1981 is no longer valid and that to go on he needs a new mandate.
Here is a confession that he has reached a blank wall, that he can no longer lead
the nation, much less achieve his economic and other programs on the basis of
his 1981 election. The Presidency has lost its capacity to govern. Hence the
people must be given a chance to decide; either to re-elect the incumbent or
choose a new leader.

"I would like to commend the President for his manly response. He seeks
the people's judgment now. And it is a wonderful chance for the people either to
renew their mandate to him or elect a new leader. The Supreme Court should
not stand in the way."
A perceptive columnist has expressed the same view thus: "(T)o say that
the political situation of the country is unstable is to belabor the obvious. The
nation is struggling out of an unprecedentedly severe economic crisis while
fighting off a growing communist-led insurgency. Government's credibility has
been questioned, as has been President Marcos' ability to lead the nation to
normalcy, hence the coming political exercise. Indeed, the Filipino nation has
been titillated by the prospect of a change." He quotes MP Renato Cayetano's
plea that "(I)t is only fair for the Supreme Court to tell the parties and the people
whether the questioned law is only part of a charade or a serious attempt to
seek a new mandate for the incumbent in Malacaang. Cayetano says 'Any delay
will only exacerbate the political situation. The Supreme Court should not
contribute to the possible destabilization of the government. The consequences
could be horrifying.'" 6/
Retired Chief Justice Enrique M. Fernando and former Senator Ambrosio
Padilla as amici curiae have likewise urged the Court not to prevent the
electorate from giving expression to the people's sovereign will at the scheduled
national election. Chief Justice Fernando has submitted that "such a vacancy
arising from a voluntary act of an incumbent of the Presidential office inspired by
the desire to seek a fresh mandate from the sovereign people is a novel situation
not contemplated by the framers of the 1981 amendments to the 1973
Constitution." Senator Padilla noting that both the President and the Batasang
Pambansa having acted in favor of the holding of the scheduled national
election, submitted that the Court should defer to the exercise of the people's
public right to vote and to express their judgment, since there is no issue or
question more political than the election. AHEDaI

From the realistic standpoint, what should be borne in mind is that
President Marcos has, through his "post-dated resignation" effectively shortened
by sixteen (16) months his tenure (which would have lasted to June 30, 1987) to
February 1986, when his successor-elect, be it himself or his opponent Cory
Aquino, takes his/her oath of office after proclamation as the winner. Similarly,
the Act has accelerated the restoration of the stabilizing office of Vice-President
to succeed the President in the event of the latter's permanent disability, death,
removal from office or resignation.
The scheduled election may indeed well be Philippine democracy's last
chance. UP President Edgardo J. Angara expressed it aptly when he wrote that
"(T)he threat to a democratic society comes either from the dictatorship of the
right or the totalitarianism of the left. . . . The snap election will provide an
opportunity for bringing these breakaway members back to the center. In a
sense, the election is a process of reunification behind the democratic
alternative. When the center of society which constitutes the majority is given
full and unhampered expression in the polls, the democratic system triumphs
and the national consensus that will emerge is a strong force for future
governance. . . . Whichever way the votes go, what really matters is the majority
act of reaffirming the efficacy of the democratic process. For the center to
emerge unified behind the democratic system is the historic lesson which the
snap electionsmay provide. . . . Prescinding from the legal issues involved, the
holding of the snap elections seems to have gained popular support not only
from the various political camps but also from other sectors as well. The
prevailing sentiment seems to be this waiting for the 1987 Presidential race
may be too late for reasons already properly articulated in other forums."
I wish to express my appreciation for the valuable insights and
perceptions that the three distinguished amici curiae have furnished the Court at
the hearings. The events that have transpired since December 3rd, as the Court
did not issue any restraining order, have turned the issue into a political question
which can be truly decided only by the people in their sovereign capacity at the
scheduled election, which hopefully will be clean, fair and honest. (Let there be a

fervent prayer that the Comelec with its past flip-flopping decisions and orders
as recorded in our jurisprudence, will this time realize that any further
desecration of a free and fair election process will spell disaster for the cause of
the peaceful democratic process.) The Court cannot stand in the way of letting
the people decide through their ballot, either to give the incumbent president a
new mandate or to elect a new president.
Separate Opinions
PLANA, J.:
The narrow legal issue involved in these petitions is whether Batas
Pambansa Blg. 883 which provides for a "snap" election on February 7, 1986
violates the Constitution.
An examination of the Constitution, particularly Article VII, Section 9, does
not yield the conclusion that B.P. Blg. 883 is offensive to its provisions. What is
clear is that the Constitution does not prohibit the President from tendering a
resignation that is not immediately effective. Indeed, there is no provision
whatsoever regarding such kind of resignation.
Not being prohibited, a Presidential resignation in futuro is allowed. And in
such a case, the Batasang Pambansa is not obliged to sit and wait for the actual
vacancy to arise before enacting necessary legislation. That would be an
unreasonable and absurd interpretation of the Constitution, which is to be
eschewed.
Quite apart from the foregoing, there is a strong presumption that a law is
constitutional, which is fortified by the rule that all reasonable doubt should be
resolved in favor of its constitutionality. Hence, in assessing the constitutionality
of a law, "to doubt is to sustain." This approach is dictated by a healthy respect
of the courts for a co-equal department, the Legislature, and the latter's
assumed wisdom within the area of its competence. This principle is doubly

applicable as regards B.P. Blg. 883 which is the product of the joint action of the
executive and legislative departments. DTEAHI
Long ago, U.S. Chief Justice Marshall laid down an epochal standard in
evaluating the constitutional validity of a law: "Let the end be legitimate, let it be
within the scope of the constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional." (M'Culloch v. Maryland, et
al., 4 Wheat. 316.) That standard remains valid till now.
Accordingly, I vote to dismiss the petitions.
ESCOLIN, J., separate opinion:
In my view, petitioners failed to demonstrate that BP 883 clearly
contravenes any applicable constitutional provision. Besides, the issue posed by
these petitions is essentially political in character. And "when the issue is a
political one which comes within the exclusive sphere of the Legislative or
Executive Department of the government to decide, the Judicial Department or
the Supreme Court has no authority to determine whether or not the act of the
Legislature or Chief Executive is against the Constitution. What determines the
jurisdiction of the courts in such case is the issue involved, and not the law or
constitutional provision which may be applied". [Mabanag, et al. vs. Lopez Vito,
et al., L-1123, March 5, 1948, 78 Phil. 1, See concurring opinion of Justice Feria].
It appears that the President himself sought the passage of the challenged
legislation, in his quest for a "new mandate" in an election that will constitute
"public judgment now on policies and programs of a fundamental nature". The
Batasan Pambansa, in the exercise of its plenary power of legislation, has
authorized the holding of the election. The positive response of the people to the
call for such an election has been overwhelming; and the body politic itself has
decided that only an election in this crucial time could deliver the country from

the clutches of subversive forces as well as the grave economic problems
plaguing the country.
Given this environmental circumstances and a statute not clearly proven
to be violative of the letter and the spirit of the constitution, this Court attuned
to the realities of the situation, should not prevent the electorate from giving
expression to their sovereign will.
RELOVA, J., separate opinion:
Article VII of the Constitution, Section 9 thereof, as amended, provides:
"Section 9.In case of permanent disability, death, removal from office
or resignation of the President, the Vice-President shall become the
President to serve the unexpired term. The Batasang Pambansa shall
by law provide for the case of permanent disability, death, removal
from office or resignation of both the President and Vice-President,
declaring what officer shall then become President or the manner in
which one shall be selected. In case a vacancy in the Office of
President occurs before the presidential election in 1987, the Speaker
of the Batasang Pambansa shall act as President until a President and
a Vice-President or either of them shall have been elected and shall
have qualified. Their term of office shall commence at noon of the
tenth day following proclamation, and shall end at noon on the
thirtieth day of June of the sixth year thereafter."
As held in Gamboa, et al. vs. CA, 108 SCRA 1, [o]ne of the ways of
terminating official relations is by resignation. To constitute a complete and
operative resignation of public office, there must be an intention to relinquish a
part of the term, accompanied by the act of relinquishment and a resignation
implies an expression of the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish the office and the acceptance
by competent and lawful authority. In Our jurisprudence, acceptance is

necessary for resignation of a public officer to be operative and effective,
"otherwise the officer is subject to the penal provisions of Article 238 of the
Revised Penal Code. . . . ." (Emphasis supplied) In the light of the abovecited
case, actual vacancy need not exist on the day of the election. When, therefore,
the Batasang Pambansa, representing the people, enacted Batas Pambansa Blg.
883 onDecember 2, 1985 and the President approved it the following day calling
for the elections on February 7, 1986, it, in effect, accepted the resignation
tendered by the incumbent on November 11, 1985 seeking a new mandate from
the people "in an election that will assess, as demanded by the opposition, the
policies and program I am undertaking. Such an election necessarily shortens my
tenure . . ." (Annex B, G.R. No. 72923). Thus, his term of office was cut short by
sixteen (16) months. As a consequence, there is justification for the holding of an
election before May 1987. Stated differently, had the President not issued the
letter-resignation, dated November 11, 1985, the Batasang Pambansa was
without authority to enact Batas Pambansa Blg. 883, otherwise known as
Cabinet Bill No. 7. But, with the issuance of said letter-resignation, the Batasan
and the President were well within their constitutional powers to enact said law
which would give the people the chance to exercise its will through the electoral
process an attribute of sovereignty. TSHEIc
Further, there is merit in the contention of former Chief Justice Enrique M.
Fernando, who appeared as amicus curiae, that "if a resignation is prompted by
a President seeking 'a new mandate' in an election that will constitute 'public
judgment now on policies and programs of fundamental nature,' by its own
admission, the above constitutional provision does not necessarily apply. What
appears indubitable is that such a vacancy arising from a voluntary act of an
incumbent of the Presidential office inspired by the desire to seek a fresh
mandate from the sovereign people is a novel situation not contemplated by the
framers of the 1981 amendments to the 1973 Constitution. . . ." (Summary of
Points Submitted for the Consideration of the Court) He submits that a legislative
act suffices because of the plenary legislative power vested in the Batasang
Pambansa.

Likewise, there is merit in the submission of the Solicitor General that
"2.The legislative power vested in the Batasang Pambansa is plenary
and
subject
only
to
such
limitation
as
are
found
in the
Constitution (see Article VII, Section 1 of the Constitution; Vera vs.

Avelino, 77 Phil. 192 [1946]; Arnault vs. Nazareno, 87 Phil. 29
[1950]; Occena vs. Commission on Elections, 95 SCRA 755 [1980].
The interstices of the Constitution are within the power of the
legislature to fill up. What is not prohibited by the Constitution can be
provided for by the Batasang Pambansa. Indeed, it is conceded 'that
the Congress of the Philippines has a wider range of legislative field
than either the Congress of the United States or a State Legislature'
(Arnault vs. Nazareno, 87 Phil. 29, 44-45 [1950].
"3.The calling of an election is essentially legislative in nature
(Ututalum vs. Commission on Elections,
15
SCRA
465
[1965].
All elections for President, Vice President, members of the legislature

and local officials in our country have been called through legislative
enactments.
It cannot be doubted that enactment of Batas Pambansa Blg. 883
falls well within the legislative authority of the Batasang Pambansa.
The narrow issue is whether the law violates the Constitution,
particularly Section 9, Article VII." (pp. 6-8, Consolidated Comment of
the Solicitor General.)
Besides, supervening events have occurred since the passage of the
law on December 3, 1985 and there would be no turning back now. The
Batasang Pambansa passed the law and the President has approved it; but the
Court
failed
to
issue
restraining
order
when
the
petitions
were
filed on December 3, 1985 so as to maintain the status quo. Thereafter, the

ruling political parties (KBL and UNIDO) have fielded their respective presidential

and vice presidential candidates in conventions and proclamations attended by
thousands of people. So much time, effort and money have already been spent.
We can take judicial notice of the fact that the overwhelming sentiment and
desire of our people is for the holding of the coming snap elections and that they
have tacitly consented and approved the law in question. At this juncture, We
cannot now deprive them of this right of suffrage. The two coordinate branches
of the government (legislative and executive) have spoken. The judiciary should
not be an obstacle to the people's desire to select their Chief Executive in the
forthcoming snap polls.
ACCORDINGLY, I vote to dismiss the petitions.
GUTIERREZ, JR., J., separate opinion:
Implicit in the republican nature of our State is adherence to the rule of
law. All acts of government must conform to the Constitution. Otherwise, they
have to be declared void.
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil.
778, 787), this Court declared emphatically that "no official, no matter how high,
is above the law" and that "the law . . . is the only supreme power in our system
of government and every man who by accepting office participates in its
functions is only the more strongly bound to submit to that supremacy and to
observe the limitations which it imposes upon the exercise of the authority which
it gives.'' IECAaD
Today, the above declaration warrants repeating. The law involved in
these petitions is no less than the Constitution, the supreme law of the land
enacted by the people in their exercise, in its highest sense, of sovereign power.
The legislative power vested in the Batasang Pambansa may be employed only
within the confines of constitutional boundaries. The President is similarly
subject to constitutional limitations and considering his solemn oath, invoking

the help of God, to "preserve and defend the Constitution," he can execute only
such statutes as do not conflict with the supreme law of the land.
In Mutuc v. Commission on Elections (36
SCRA
228,
234)
this
Court
declared:
"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 functionary, 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. The three departments of
government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the
enactment
of
statutes
must
ever
be on guard
lest
the
restrictions on its authority, whether substantive or formal, be

transcended. The Presidency in the execution of the laws cannot
ignore or disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its
power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary
of this basic principle that the Constitution is paramount. It overrides
any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law."
I am constrained to reiterate the above basic principles because some
distinguished counsel have come forward with the strange proposition that
inspite of the clear circumvention by both the Legislature and the Executive of
express procedures mandated by the Constitution, "national interest" requires
that we should overlook the violations and dismiss the present petitions.

All members of this Court have taken an oath "na aking itataguyod at
ipagtatanggol ang Saligang Batas ng Pilipinas." We do not preserve and
defend the Constitution through a circumvention of its requirements and an
ignoring of its mandates.
The policy nature of their concerns and the passion of politics now
animating them may mitigate the inattention of the Batasan and the Executive
to scrupulous compliance with Section 9, Article VII of the Constitution. We
cannot enjoy the same luxury. I personally feel that during these critical times,
more than in happier days, we should insist on compliance with the rule of law in
its punctiliously authentic form. National interest and political stability cannot be
premised upon violations of our fundamental law. Political expediency and the
momentary, easily forgotten cry of the public are too precarious and shifting to
become legal foundations of a free and hopefully prosperous society. Indeed,
much depends on the forthcoming elections but even more is at stake in the
maintenance of constitutionalism upon which our democratic government is
founded and because of which popular and free elections are held.
I find no difficulty in concluding that Batas Pambansa Blg. 883 is
unconstitutional.
BP 883 calls a special election for president and vice-president. It is
elementary in the law of public officers that no valid appointment or election to
any public office may be effected if the office is not vacant. In the normal course
of events, the office of the President becomes vacant upon the expiration of the
term of an incumbent. A regular election fills the vacancy. But we are not
concerned with a regular election. There is a call for a special or an emergency
election. TcSHaD
A special election may not be called for just any purpose or on any
occasion. A special election becomes necessary only when a vacancy is created
by death, permanent disability, removal from office, or resignation. I cannot
accept the proposition that a simulated or fictitious vacancy is a "vacancy" as

understood in the law of public officers. The vacancy must be real and in esse,
not a parody or shadow of the real thing. In the same way that death, disability,
or removal from office must be actual and permanent before the pertinent
provisions of Section 9, Article VII of the Constitution may come into play, so
must a resignation be real and irrevocably permanent. Inspite of all the learned
arguments
of
distinguished
counsel,
still
fail
to
see
how special or
emergency elections may be held for a position which is not vacant. Or how the
call for special elections can become the means of creating in the future the now
non-existent vacancy. Or how a vacancy can come about only after special and
emergency elections to fill that very same vacancy have already been held.
Credulity can be stretched only too far.
If the exigencies of national interest are pressing, now or in the near
future, and if the need for establishing political and economic stability is
imperative, that elections for a President and a Vice President can no longer wait
for 1987, the Constitution provides the remedy. The President can resign and
pursuant to Section 9 Article VII of the Constitution, the Speaker of the Batasan
shall act as President until the President and the Vice President or either of them
shall have been elected in the special elections called to fill the vacancy thus
created and shall have qualified. The muddling of the President's term of office
shall also be obviated. By the same provision of the Constitution, a new term of
office, which ignores the present fixed term of the incumbent, shall commence at
noon of the tenth day following the proclamation and shall end at noon on the
thirtieth day of the sixth year thereafter.
I find Section 9 of Article VII clear and intelligibly simple. Any layman
reading it can easily grasp its meaning and understand the contingencies for
which it was intended. The words of Chief Justice Enrique M. Fernando speaking
for the Court in J.M. Tuason & Co. v. Land Tenure Administration (31 SCRA 413,
422) are appropriate:
"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 there are cases where the need for
construction is reduced to a minimum."
Since the Constitution itself provides an easily followed remedy, one which
any fairly literate citizen can readily comprehend, I do not see why the
Legislature and the executive should adopt a new fangled, perplexing, and
constitutionally infirm method of achieving a most desirable end. I believe that
all of us in Government must sincerely demonstrate our readiness to abide by
the terms and procedures of the Constitution even as we try to solve serious
national problems.
Neither
can
the
special elections be
premised on the
accountability
provisions in Article XIII of the Constitution. Snap elections to make the executive
accountable to the people are for parliamentary systems. We have a presidential
form
of
government.
When
the 1973
Constitution came
into
force
and
effect on January 17, 1973, it provided for a parliamentary system. Section 13 of

Article VIII provided that "the National Assembly may withdraw its confidence
from the Prime Minister only by electing a successor by a majority vote of all its
members." Executive power was then exercised by the Prime Minister assisted
by his cabinet. The President was only a symbolic head of state. The National
Assembly could remove the Executive by majority vote but the Executive could

also have the Assembly dissolved and have the questions on fundamental issues
resolved by the people in so-called snap elections. ITAaCc
Before this parliamentary government could be installed, we amended the
Constitution and returned to the presidential form. Any lingering traces of
parliamentarism carried over from the original 1973 provisions only serve to
make our government even more presidential. The dominance of the Executive
over the Legislature is much more marked now than in the 1935 presidential
system. This being so, the accountability aspects of parliamentary systems
cannot be used to justify our legitimating BP 883.
I share the sentiments of the respondents and some of the petitioners in
their desire for ascertaining the people's will. But I submit that our basic law, the
act of the people which regulates the entire fabric of our government, must be
followed.
I am, therefore, constrained to dissent and to maintain my original vote to
enjoin the holding of elections under a statute I find null and void.
NESTOR B. ALAMPAY, J., separate opinion:
The basic duty of this Court is restricted to the determination of whether
B.P. 833 calling for a special election is in accord with or in violation of
our Constitution. Difficulty has been added to this task which the Court has to
accomplish because of the inconsistent and to an extent bewildering positions
taken and manifested by some of the petitioners during the hearing of these
cases. Members of the Court are puzzled as to what petitioners really profess
this Court should rightfully decree. Indeed, it would seem that what was initially
asked by certain petitioners in these consolidated petitions to be done by this
Court based on the grounds and reasons stated in their respective petitions,
such
as
to
prohibit
the
respondent Commission from
implementing
B.P.
833 on account of this statute's constitutional infirmity, have been now

abandoned by the same petitioners who but recently assailed the legality of B.P.

833. The unconstitutionality of said statute is still being insisted upon but,
nevertheless, it is prayed that such governing and decisive factor be
disregarded, ignored or even circumvented and that this Court should cooperate
in the alleged unanimous will of the Executive and Legislative departments of
our country that there be an election for the Presidency and Vice-Presidency of
the nation next February, 1986, rather than in 1987.
It is my submission that the Court should detach itself from these swirling
and fickle attitudes that it has perceived and it should not be moved by the
rhetorical allusions to the alleged but unquantified desire of our people to
participate in an election which is at the same time contended to be not
sanctioned by and in conflict with what is clearly provided for in our Constitution.
The rash and reckless suggestions suggested to the Court by petitioners will only
create and give rise to a dangerous precedent that could erode the stability that
inherently should attach and be reposed in the Constitution. Appeals to what is
claimed to be the present popular wish should assume no significance in the
resolution of the primary issue. What our Constitution decrees should be
respected and followed.
It is my considered view that the special election on February 7, 1986,
called for pursuant to Batas Pambansa Blg. 833, does not meet at all the specific
condition that there should first be an actual and existing vacancy before a
special election can be held to elect a new President before the present term of
the incumbent expires on May 30, 1987. Logic and simple reasoning alone even
without need of legal citations, will be sufficiently persuasive to form a
conclusion that no special election is necessary to fill up a position which is not
attended by a vacancy. The absence of an actual vacancy negates and precludes
acceptance of any unwarranted and expensive special election. The searching
analysis made by other Colleagues in the Court who share with me in the above
stated views make needless a repetitious and extended dissertation on this
matter. Absent an actual and real vacancy, the holding of a special election
cannot be given color of legality by the reference to certain conditions attaching
to the imputed vacancy but which conditions most plainly would happen only

after the election had already taken place and with the position to be filled up by
the election uninterruptedly occupied by a legal occupant.
On this simple view, I readily conclude that Batas Pambansa Blg. 833
should be declared unconstitutional for being violative of the spirit and letter of
our Constitution. I vote, therefore, to declare Batas Pambansa Blg. 833
unconstitutional
and
consequently,
to
enjoin
the
respondent Commission on Elections from conducting the unwarranted special

election for President and Vice-President on February 7, 1986. IaHSCc
PATAJO, J., dissenting:
Fully aware as I am that all laws are presumed constitutional and that all
reasonable doubt should be resolved in favor of their constitutionality and only
when the conflict between any law and the Constitution is clearly beyond
reasonable doubt, should said law be declared unconstitutional, I approach the
issue of the constitutionality of Batas Pambansa Blg. 883 in the context of what
appears to be a popular clamor for the holding of a special presidential and vicepresidential election on February 7, 1986.
The
common
grounds
alleged
in
the
petitions
assailing
the
constitutionality of said law are that the only instance that the Batasan can call
for the holding of an election before the expiration of the term of the President in
1987 is upon the occurrence of the contingencies provided for in Section 9 of
Article VII of the Constitution, namely the permanent disability, death, removal
from office or resignation of the President before the presidential election of
1987 for in that case a vacancy in the Office of the President has been created
triggering the mechanism for the calling of a special election to fill up said
vacancy together with the election of the vice-president in accordance with the
provisions set forth in Section 9, Article VII of the Constitution and that Batas
Pambansa Blg. 883 has in effect shortened the term of the President elected in
1981 without going through the process of amending the Constitution as the
Batasan in enacting said law acted in the exercise of its legislative powers and

not as a constituent body. Petitioners contend that the letter of the President
recommending to the Batasan the calling of a special election because of the
need for the President to seek a new mandate in an election that will assess, as
demanded by the opposition, the policies and programs being undertaken by
him upon his undertaking that he will irrevocably vacate the position of the
President effective when such election is held and the winner is proclaimed and
qualified as president by taking his oath of office ten days after his proclamation
is not a resignation which would create a vacancy within the meaning of Section
9 of Article VII. That there is no vacancy is evident from the fact that the
President still continues in office until the assumption in office by the winning
candidate in the special election instead of the Speaker who, under the provision
of the Constitution, becomes acting president in case of a permanent disability,
death, removal from office or resignation of the President before the presidential
election of 1987. What Section 9, Article VII contemplates is an actual vacancy
and not a vacancy in futuro.
The Solicitor General defending the constitutionality of said law contends
that there is nothing in the Constitution which prohibits the Batasan Pambansa in
the exercise of its legislative plenary powers to call for the holding of the special
election for the Office of the President on February 7, 1986 upon the undertaking
of the incumbent President that he will irrevocably vacate the position of
president if an election is held for said office and the winner proclaimed and
qualified by taking his oath of office ten days after his proclamation. The
occasion for the holding of said special election is the need of the incumbent
President to seek a new mandate in an election that will assess, as demanded by
the opposition, the policies and programs being undertaken by him.
It is my considered view that Batas Pambansa Blg. 883 is unconstitutional.
While the 1973 Constitution, as amended, has adopted several features of
the parliamentary system, our government is still essentially a presidential form
of government and the term of office of the President is for a fixed term of six
years. Since the incumbent President was elected in 1981 for a term of six years

beginning at noon on the 30th day of June of 1981 and ending noon of the same
date six years thereafter when the term of his successor shall begin, Batas
Pambansa Blg. 883 had shortened the term of the President without going into
the process of amending the Constitution. The shortening of the term of the
office of the incumbent President cannot be justified by the action of the
President agreeing to vacate his office on condition that a special election be
held and the winning candidate for said office is proclaimed and qualified as
president by taking his oath of office ten days after his proclamation. The
President can only shorten his term of office by unconditionally resigning
therefrom before its expiration in order that a vacancy is created and the
Speaker of the Batasan shall act as President and the Batas Pambansa shall call
for the holding of a special election to elect a president and a vice-president in
accordance
with
the
provisions
of
Section
of
Article
VII
of the
Constitution. aSTAIH
The letter of the President of November 11, 1985 recommending to the
Batasan the enactment of law calling for special election as there will be a
definite and inevitable vacancy in the Office of the President which will pave the
way for the holding of said special election because of his undertaking to
irrevocably vacate the position of President effective only when the election is
held and the winner is proclaimed and qualified as president by taking his oath
of office ten days after his proclamation does not create a vacancy that will
trigger the mechanism for the calling of a special election to fill up said vacancy
in accordance with the procedure set forth in Section 9 of Article VII. Actually, the
conditions mentioned by the President for calling of a special election have not
at all created a vacancy because he continues in office as president up to the
assumption of office of the president-elect. As petitioners correctly contended,
proof that there is no vacancy in the Office of the President as contemplated in
Section 9 of Article VII is that he continues to exercise the functions of the
president instead of the Speaker who, under the provisions of said Section 9,
becomes acting president in case of a permanent disability, death, removal from
office or resignation of the President before the presidential election of 1987.

The contention of the Solicitor General that the provisions of Section 9,
Article VII do not preclude the Batasan Pambansa in the exercise of its plenary
legislative powers to call for the holding of a special election for the position of
president in a situation other than that contemplated in Section 9 such as the
need of the incumbent President for a new mandate is without merit. While it is
true that the power to call an election is exclusively a legislative prerogative,
such power cannot be exercised where its effect would be to amend an express
provision of the Constitution, more specifically Section 5, Article VII fixing the
term of the office of the president and the vice-president to six years. The power
to define the term of the president and vice-president is not legislative but
constituent and can only be exercised thru an amendment to the Constitution in
the manner provided for in the Constitution. In effect, Batas Pambansa Blg. 883
has amended the Constitution by an act of the Batasan as a legislative body, not
a constituent assembly and without the ratification of majority votes cast in a
plebiscite.
". . . And we are asked to raise the power from the general legislative
authority by implication, to serve convenience and expedition in
making organic change. If it were conceded that an easier and
quicker mode of change is desirable, a concession not permissible, if
the views of the greatest writers on questions touching government
under written Constitutions are of force, a cannon of constitutional
construction forbids the implication of the authority, for it is the rule
that where the means by which the power granted shall be exercised
are specified, no other or different means for the exercise of such
power can be implied even though considered more convenient or
effective than
the
means
given
in the
Constitution;
and the
Constitution gives special power to the Legislature, and provides the

means of exercising it, to effect needed changes in the organic law. . .
." (Ellingham v. Dye, 178 Ind. 336; 99 NE 1, 15). (emphasis ours.)
Neither can the provision of the Constitution providing for accountability of
public officers be invoked to justify the holding of a special election

contemplated by Batas Pambansa Blg. 883. Impeachment of the President and
the other constitutional officers is the recourse for holding them accountable.
In short, a special election for the Office of the President before the
expiration of his term in June of 1987 is authorized only on the occurrences of
the contingencies enumerated in Section 9 of Article VII, namely permanent
disability, death, removal from office or resignation of the President. The
undertaking of the President to vacate his office upon the qualification of the
president-elect in the presidential election of February 7, 1986 is not a
resignation within the meaning of Section 9, Article VII.
While I am not unaware of the popular clamor for the holding of the
"Snap Elections," a move initiated by the "opposition" and finally accepted by
the President in order to provide an opportunity to submit to the electorate the
acceptability of the President's program and policies of government even before
the expiration of his term of office in June 1987, I believe the duty to uphold the
primacy of the Constitution is a responsibility that this Court cannot shirk. For as
said by the Supreme Court of Michigan speaking through Cooley, J.: AIHECa
"Constitutions do not change with the varying tides of public opinion
and desire; the will of the people therein recorded is the same
inflexible law until changed by their own deliberative action; and it
cannot be permissible to the courts that, in order to aid evasions and
circumventions, they shall subject these instruments * * * to a
construction, as if they were great public enemies standing in the
way of progress, and the duty of every good citizen was to get
around their provisions whenever practicable, and give them a
damaging thrust whenever convenient. They must construe them as
the people did in their adoption. If the means of arriving at that
construction are within their power." Bay City v. State Treasurer, 23
Mich. 499, 506. (emphasis ours).

In the same vein is what the Court said in ex rel Kinworthy v. Martin, 60 Ark. 343,
30 S.W. 421, that in construing Constitutions, Courts have nothing to do with the
argument ab inconveniente and should not bend the Constitution to suit the law
of the hour, quoting Greencasce vs. Black, 5 Ind. 557, 565. 11 Am. Jur. 659.
The constitutionality of Batas Pambansa Blg. 883 is a justiciable one and
not a political question which the Court must decide without equivocation.
I vote, therefore, to grant the petition and declare Batas Pambansa Blg.
883 unconstitutional.
In connection with the resolution of December 19, 1985 in the aboveentitled cases, Justice De la Fuente filed a separate opinion in the Clerk of
Court's Office on December 23, 1985:
DE LA FUENTE, J., separate opinion:
For the reasons well stated by my distinguished colleague, Hon. Lino
Patajo, I am inclined to share the view expressed in his dissent that B.P. Blg. 883
is unconstitutional. For it contravenes the intent, letter and spirit of the
succession provision section 9, Article VII of the Constitution. To my mind
the said statute would, if implemented, sidetrack or bypass the cited
constitutional provision designed to govern the selection of a successor in case
ofvacancy in the office of the President before the next regular election in 1987.
A conditional or qualified "resignation" of the President which shall take
effect after the February 7, 1986 "special presidential election" and only upon
the proclamation and qualification of the candidate chosen by the electorate, is
not sufficient ground or justification for a so-called "snap" election. In explicit
language, section 9, Article VII, provides for the constitutional formula or device
in filling the Office of the President the moment it becomes vacant by reason of
the incumbent's "permanent disability, death, removal from office or resignation"
at anytime prior to the end of his term in June 1987. Such "resignation", as I see
it, must be one resulting in permanent vacancy actual or in esse, not merely

prospective or inchoate or contingent as of the time of the special presidential
election, whereupon the Batasan Speaker shall take over thevacated office as
caretaker President until a new President shall have been duly elected,
proclaimed and qualified by taking his oath of office.
I have reached this conclusion after the hearings and upon due
consideration of the arguments and submissions for the petitioners and the
respondents, the former Chief Justice E. M. Fernando, and other legal luminaries,
especially those of former Vice-President Emmanuel Pelaez in an article entitled
"UNCONSTITUTIONALITY OF THE 'SNAP' POLL", 1/ which he mentioned at the
hearing as he gave his comments on the constitutional issue before this Court. I
reproduce herein-below the most pertinent portions of his dissertation. 2/ I also
find the observations of Atty. Sedfrey Ordoez in the petition and the reply filed
for the Liberal Party and former Senator Jovito Salonga as well as those of Atty.
Raul Gonzales, National Bar Association President, who appeared and argued at
the hearing, very persuasive enough to overcome the doubts I had entertained
earlier as to the alleged facial unconsitutionality of B.P. Blg. 883. I am, however,
unable to agree with former Vice-President Pelaez and others who have stressed
the unconstitutionality of the law in question but urged, nonetheless, this
Tribunal to allow its implementation by taking into account "supervening events"
transpiring since the filing of the petitions and the "people's overwhelming
desire to hold" the "snap" election, the constitutional issue having "become a
political one, beyond its [this Court's] authority to enjoin."
While the practice followed under the Constitution and our election laws
has been to allow the President or an elective public official to submit himself for
re-election to the same office without vacating it (remaining in office until the
end of his term and during the election period), this generally refers to a
"regular"
election,
not
to
a special election
called
precisely
to
fill
up
an existing permanent vacancy in the elective office. The device or formula

found in Section 9, Article VII, having been so conceived and designed in detail
to meet a possible sudden vacancy occurring during a short period before
the regular presidential election in 1987, respect for the will of the Filipino people

who ratified the constitutional amendment in 1984 demands, I think, no less
than strict adherence to the afore-mentioned succession provision. B.P. Blg. 883
constitutes, plainly, a deviation from and evasion of that provision. SHDAEC
Finally, if the objective of the so-called "snap" election law was to enable
the President to ask the Filipino people for a vote of confidence, the most
appropriate and adequate vehicle for that is a referendum as suggested by MP
Arturo Tolentino and former Vice-President Pelaez. A negative vote would surely
bring about a vacancy in the office of the President, which can then be filled up
in accordance with the succession procedure provided by section 9, Article VII.
The other option, also suggested by both, is a constitutional amendment
incorporating the features of B.P. Blg. 883, to be submitted to the people for
ratification.
||| (Philippine Bar Association v. Commission on Elections, G.R. Nos. 72915, 72922,
72923, 72924, 72927, 72928, 72935, 72954, 72957, 72968 & 72986 (Resolution),
[December 19, 1985])
13. LAWYERS LEAGUE VS AQUINO

14. IN RE: BERMUDEZ
EN BANC
[G.R. No. 76180. October 24, 1986.]
SATURNINO V. BERMUDEZ, petitioner.
SYLLABUS
1. REMEDIAL LAW; DISMISSAL OF PETITIONS; LACK OF JURISDICTION AND LACK OF
CAUSE OF ACTION, VALID GROUNDS. The petition is dismissed outright for lack of

jurisdiction and for lack of cause of action. Prescinding from petitioner's lack of
personality to sue or to bring this action (Tan vs. Macapagal, 43 SCRA 677). it is
elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the
incumbent Presidents of the Republic. President Corazon C. Aquino, and it is equally
elementary that incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure. The petition furthermore
states no cause of action. Petitioner's allegation of ambiguity or vagueness of the
aforequoted provision is manifestly gratuitous, it being a matter of public record and
common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and
to no other persons, and provides for the extension of their term to noon of June 30,
1992 for purpose of synchronization of elections. Hence the second paragraph of
the cited section provides for the holding on the second Monday of May, 1992 of the
first
regular
elections
for
the
President
and
Vice-President
under
said
1986 Constitution.
MELENCIO-HERRERA, J., concurring:
1. REMEDIAL LAW; DISMISSAL OF PETITION, PROPER IN CASE AT BAR; SUPREME
COURT HAS NO ORIGINAL JURISDICTION OVER PETITIONS FOR DECLARATORY RELIEF.
As to lack of cause of action, the petitioner's prayer for a declaration as to who
were elected President and Vice-President in the February 7, 1986 elections should
be addressed not to this court but to other departments of government
constitutionally burdened with the task of making that declaration. The 1935
Constitution, the 1973 Constitution an amended, and the 1986 Draft Constitution
uniformly provide that boards of canvassers in each province and city shall certify
who were elected President and Vice President in their respective areas. The
certified returns are transmitted to the legislature which proclaims, through the
designated Presiding Head, who were duly elected. Copies of the certified returns
from the provincial and city boards of canvassers have not been furnished this Court
nor is there any need to do so. In the absence of a legislature, we cannot assume
the function of stating, and neither do we have any factual or legal capacity to

officially declare, who were elected President and Vice President in the February 7,
1986 elections.
RESOLUTION
PER CURIAM p:
In a petition for declaratory relief impleading no respondents, petitioner, as a
lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated)
of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:
"Sec. 5. The six-year term of the incumbent President and VicePresident elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30,
1992."
"The first regular elections for the President and Vice-President under
this Constitution shall be held on the second Monday of May, 1992."
Claiming that the said provision "is not clear" as to whom it refers, he then asks the
Court "to declare and answer the question of the construction and definiteness as to
who, among the present incumbent President Corazon Aquino and Vice President
Salvador Laurel and the elected President Ferdinand E. Marcos and Vice President
Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII
of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . . . "
The petition is dismissed outright for lack of jurisdiction and for lack of cause of
action. prLL
Prescinding from petitioner's lack of personality to sue or to bring this action (Tan
vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no
jurisdiction over petitions for declaratory relief. More importantly, the petition
amounts in effect to a suit against the incumbent President of the Republic,
President Corazon C. Aquino, and it is equally elementary that incumbent Presidents

are immune from suit or from being brought to court during the period of their
incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of
ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it
being a matter of public record and common public knowledge that the
Constitutional Commission refers therein to incumbent President Corazon C. Aquino
and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of
elections. Hence, the second paragraph of the cited section provides for the holding
on the second Monday of May, 1992 of the first regular elections for the President
and Vice-President under said 1986 Constitution. In previous cases, the legitimacy
of the government of President Corazon C. Aquino was likewise sought to be
questioned with the claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by this court which held that:
"Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President
Corazon C. Aquino which is in effective control of the entire country
so that it is not merely a de facto government but in fact and law
a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven
members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government." (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a
Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R.
No. 73972 [People's Crusade for Supremacy of the Constitution etc.
vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reasons, which are fully applicable to the petition at
bar, mutatis mutandis, there can be no question that President Corazon C. Aquino
and Vice-President Salvador H. Laurel are the incumbent and legitimate President
and Vice President of the Republic of the Philippines.
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C . J ., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ ., concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII,
Section 5 of the Draft Constitution adopted by the Constitutional Commission of
1986.
We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were
elected President and Vice President in the February 7, 1986 elections should be
addressed not to this Court but to other departments of government constitutionally
burdened with the task of making that declaration.
The 1935 Constitution, the 1973 Constitution as amended, and the 1986 Draft
Constitution uniformly provide that boards of canvassers in each province and city
shall certify who were elected President and Vise President in their respective areas.
The certified returns are transmitted to the legislature which proclaims, through the
designated Presiding Head, who were duly elected.
Copies of the certified returns from the provincial and city boards of canvassers
have not been furnished this Court nor is there any need to do so. In the absence of
a legislature, we cannot assume the function of stating, and neither do we have any

factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986
Draft Constitution, we agree that there is no doubt the 1986 Constitutional
Commission referred to President Corazon C. Aquino and Vice President Salvador H.
Laurel. LibLex
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and
73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
Gutierrez, Jr. and Feliciano, JJ ., concur.
CRUZ, J ., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to
interpret has not yet been ratified and is therefore not yet effective. I see here no
actual conflict of legal rights susceptible of judicial determination at this time.
(Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs. Secretary of
Education, 97 Phil. 806.)
||| (Saturnino V. Bermudez, G.R. No. 76180 (Resolution), [October 24, 1986], 229
PHIL 185-190)
15. IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of

Appeals
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court
of Appeals dated 14 November 1990.
RESOLUTION
PADILLA, J p:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals,
wrote a letter dated 14 November 1990 addressed to this Court, seeking the
correction of his seniority ranking in the Court of Appeals.
It appears from the records that petitioner was first appointed Associate Justice of
the Court of Appeals on 20 June 1980 but took his oath of office for said position

only on 29 November 1982, after serving as Assistant Solicitor General in the Office
of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled "An Act
Reorganizing
the
Judiciary.
Appropriating
Funds
Therefor
and
For
Other
Purposes." 2 Petitioner was appointed Appellate Justice in the First Special Cases
Division of the Intermediate Appellate Court. On 7 November 1984, petitioner
accepted an appointment to the government and ceased to be a member of the
Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a
reorganization of the entire government, including the Judiciary. To effect the
reorganization of the Intermediate Appellate Court and other lower courts, a
Screening Committee was created, with the then Minister of Justice, now Senator
Neptali
Gonzales
as
Chairman
and
then
Solicitor
General,
now
Philippine
Ambassador to the United Nations Sedfrey Ordoez as Vice Chairman. President

Corazon C. Aquino, exercising legislative powers by virtue of the revolution,
issued Executive Order No. 33 to govern the aforementioned reorganization of the
Judiciary. 4
The Screening Committee recommended the return of petitioner as Associate
Justice of the new Court of Appeals and assigned him the rank of number eleven
(11) in the roster of appellate court justices. When the appointments were signed by
President Aquino on 28 July 1986, petitioner's seniority ranking changed, however,
from number eleven (11) to number twenty six (26). 5
Petitioner now alleges that the change in his seniority ranking could only be
attributed to inadvertence for, otherwise, it would run counter to the provisions
of Section 2 of Executive Order No. 33, which reads: Cdpr
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is
hereby amended to read as follows:
"SEC. 2. Organization. There is hereby created a Court of Appeals
which shall consist of a Presiding Justice and fifty Associate Justices

who shall be appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his appointment and the
Associate Justice shall have precedence according to the dates of
their respective appointments, or when the appointments of two or
more shall bear the same date, according to the order in which their
appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position
in the government shall retain the precedence to which he was
entitled under his original appointment, and his service in the Court
shall, for all intents and purpose be considered as continuous and
uninterrupted." 6
Petitioner elaborates that President Aquino is presumed to have intended to comply
with her own Executive Order No. 33 so much so that the correction of the
inadvertent error would only implement the intent of the President as well as the
spirit of Executive Order No. 33 and will not provoke any kind of constitutional
confrontation (between the President and the Supreme Court). 7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of
the Court of Appeals who, according to petitioner, was transferred from his position
as Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land
Registration and in 1986 was reappointed to the Court of Appeals. Petitioner states
that his (Victoriano's) stint in the Commission of Land Registration did not adversely
affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order
No. 33 was correctly applied. 8
In a resolution of the Court en banc dated 29 November 1990, the Court granted
Justice Puno's request. 9 It will be noted that before the issuance of said resolution,
there was no written opposition to, or comment on petitioner's aforesaid request.
The dispositive portion of the resolution reads:
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno
for correction of his seniority ranking in the Court of Appeals is
granted. The presiding Justice of the Court of Appeals, the Honorable

Rodolfo A. Nocon, is hereby directed to correct the seniority rank of
Justice Puno from number twelve (12) to number five (5). Let copies
of this Resolution be furnished the Court Administrator and the
Judicial and Bar Council for their guidance and information." 10
A motion for reconsideration of the resolution of the Court en banc dated 29
November 1990 was later filed by Associate Justices Jose C. Campos, Jr. and Luis A.
Javellana, two (2) of the Associate Justices affected by the ordered correction. They
contend that the present Court of Appeals is a new Court with fifty one (51)
members and that petitioner could not claim a reappointment to a prior court;
neither can he claim that he was returning to his former court, for the courts where
he had previously been appointed ceased to exist at the date of his last
appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the petitioner to
file his comment on the motion for reconsideration of the resolution dated 29
November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in
relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number
five (5) for, though President Aquino rose to power by virtue of a revolution, she had
pledged at the issuance of Proclamation No. 3 (otherwise known as the Freedom
Constitution) that "no right provided under the unratified 1973 Constitution (shall)
be absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually reenacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory
construction rules on simultaneous repeal and re-enactment mandate, according to
petitioner, the preservation and enforcement of all rights and liabilities which had
accrued under the original statute. 13 Furthermore, petitioner avers that, although
the power of appointment is executive in character and cannot be usurped by any
other branch
of
the
Government, such
power can
still
be
regulated
by
the Constitution and by the appropriate law, in this case, by the limits set

by Executive Order NO. 33 14 for the power of appointment cannot be wielded in
violation of law. 15
Justices Javellana and Campos were required by the Court to file their reply to
Justice Puno's comment on their motion for reconsideration of the resolution of the
Courten banc dated 24 January 1991.LibLex
In their Reply and Supplemental Reply, Associate Justices Javellana and Campos
submit that the appeal or request for correction filed by the petitioner was
addressed to the wrong party. They aver that as petitioner himself had alleged the
mistake to be an "inadvertent error" of the Office of the President, ergo, he should
have filed his request for correction also with said Office of the President and not
directly with the Supreme Court. 16 Furthermore, they point out that petitioner had
indeed filed with the Office of the President a request or petition for correction of his
ranking, (seniority) but the same was not approved such that his recourse should
have been an appropriate action before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office of the President they argue,
should be respected by the Supreme Court "not only on the basis of the doctrine of
separation of powers but also their presumed knowledge ability and even expertise
in the laws they are entrusted to enforce" 17 for it (the non-approval) is a
confirmation that petitioner's seniority ranking at the time of his appointment by
President Aquino was, in fact, deliberate and not an "inadvertent error" as petitioner
would have the Court believe. 18
The resolution of this controversy is not a pleasant task for the Court since it
involves not only members of the next highest court of the land but persons who
are close to members of this Court. But the controversy has to be resolved. The core
issue in this case is whether the present Court of Appeals is a new court such that it
would negate any claim to precedence or seniority admittedly enjoyed by petitioner
in the Court of Appeals and Intermediate Appellate Court existing prior to Executive
Order No. 33 or whether the present Court of Appeals is merely a continuation of
the
Court
of
Appeals
and
said Executive Order No. 33.
Intermediate
Appellate
Court
existing
prior
to

It is the holding of the Court that the present Court of Appeals is a new entity,
different and distinct from the Court of Appeals or the Intermediate Appellate Court
existing prior to Executive Order No. 33, for it was created in the wake of the
massive reorganization launched by the revolutionary government of Corazon C.
Aquino in the aftermath of the people power (EDSA) revolution in 1986.
A revolution has been defined as "the complete overthrow of the established
government in any country or state by those who were previously subject to
it" 19 or as "a sudden, radical and fundamental change in the government or
political system, usually effected with violence or at least some acts of
violence." 20 In Kelsen's book, General Theory of Law and State, it is defined as that
which "occurs whenever the legal order of a community is nullified and replaced by
a new order . . . a way not prescribed by the first order itself." 21
It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the "people power revolution" that the Filipino people tore
themselves
away
from
an
existing
regime.
This
revolution
also
saw
the
unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an
proved inadequate or are so obstructed as to be unavailable." 22 It has been said
that "the locus of positive law-making power lies with the people of the state" and
from there is derived "the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution." 23
The
three
(3)
clauses
that
precede
the
text
of
the
Provisional
(Freedom) Constitution, 24 read:

"WHEREAS, the new government under President Corazon C. Aquino
was installed through a direct exercise of the power of the Filipino
people assisted by units of the New Armed Forces of the Philippines;

"WHEREAS, the heroic action of the people was done in defiance of
the provisions of the 1973 Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by
virtue of the powers vested in me by the sovereign mandate of the
people,
do
hereby
promulgate
the
following Provisional
Constitution." 25
These summarize the Aquino government's position that its mandate is taken from
"a direct exercise of the power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino government
was "revolutionary in the sense that it came into existence in defiance of the
existing legal processes" 27 and that it was a revolutionary government "instituted
by the direct action of the people and in opposition to the authoritarian values and
practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal order
was overthrown by the Aquino government. "A legal order is the authoritative code
of a polity. Such code consists of all the rules found in the enactments of the organs
of the polity. Where the state operates under a written constitution, its organs may
be readily determined from a reading of its provisions. Once such organs are
ascertained, it becomes an easy matter to locate their enactments. The rules in
such enactments, along with those in the constitution, comprise the legal order of
that constitutional state." 29 It is assumed that the legal order remains as a "culture
system" of the polity as long as the latter endures 30 and that a point may be
reached, however, where the legal system ceases to be operative as a whole for it is
no longer obeyed by the population nor enforced by the officials. 31
It is widely known that Mrs. Aquino's rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr.
Marcos at the winner in the 1986 presidential election. 32 Thus it can be said that
the organization of Mrs. Aquino's Government which was met by little resistance
and her control of the state evidenced by the appointment of the Cabinet and other

key officers of the administration, the departure of the Marcos Cabinet officials,
revampt of the Judiciary and the Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate Court existing
prior to Executive Order No. 33 phased out as part of the legal system abolished by
the revolution and that the Court of Appeals established under Executive Order No.
33 was an entirely new court with appointments thereto having no relation to earlier
appointments to the abolished courts, and that the reference to precedence in rank
contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended byExecutive
Order No. 33 refers to prospective situations as distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not abolish the
precedence or seniority ranking resulting from previous appointment to the Court of
Appeals or Intermediate Appellate Court existing prior to the 1986 revolution, it is
believed that President Aquino as head of then revolutionary government, could
disregard or set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33,
President Aquino was still exercising the powers of a revolutionary government,
encompassing both executive and legislative powers, such that she could, if she so
desired, amend, modify or repeal any part of B.P. Blg. 129 or her own Executive
Order No. 33. It should also be remembered that the same situation was still in force
when she issued the 1986 appointments to the Court of Appeals. In other words,
President Aquino, at the time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No.
33, on precedence or seniority in the case of the petitioner, for reasons known only
to her. Since the appointment extended by the President to the petitioner in 1986for
membership in the new Court of Appeals with its implicit ranking in the roster of
justices, was a valid appointment anchored on the President's exercise of her then
revolutionary powers, it is not for the Court at this time to question or correct that
exercise.

ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority
rankings of members of the Court of Appeals, including that of the petitioner, at the
time the appointments were made by the President in 1986, are recognized and
upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ ., concur.
||| (In re: Puno, A.M. No. 90-11-2697-CA (Resolution), [June 29, 1992])
16. DE LEON V. ESGUERRA

G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C.
TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION,
petitioners,
vs.

HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the
Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of
the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M.
TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ,
and TERESITA L. TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin
respondents from replacing them from their respective positions as Barangay
Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay,
Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and
petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was
elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta.
Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay
Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum
antedated December 1, 1986 but signed by respondent OIC Governor Benjamin
Esguerra on February 8, 1987 designating respondent Florentino G. Magno as
Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the
OIC Governor was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum,
antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z.
Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members
of the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of
respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on
March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the
performance of my duties thereof, I among others, have signed as I did
sign the unnumbered memorandum ordering the replacement of all the
barangay officials of all the barangay(s) in the Municipality of Taytay,
Rizal;

That the above cited memorandum dated December 1, 1986 was
signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned
the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be
declared null and void and that respondents be prohibited from taking over their
positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners
maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg.
222), their terms of office "shall be six (6) years which shall commence on June 7,
1982 and shall continue until their successors shall have elected and shall have
qualified," or up to June 7, 1988. It is also their position that with the ratification of
the 1987 Constitution, respondent OIC Governor no longer has the authority to
replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional
Constitution, promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under
the 1973 Constitution shall continue in office until otherwise provided
by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment
is made within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office
of elective and appointive officials were abolished and that petitioners continued in
office by virtue of the aforequoted provision and not because their term of six years
had not yet expired; and that the provision in the Barangay Election Act fixing the
term of office of Barangay officials to six (6) years must be deemed to have been
repealed for being inconsistent with the aforequoted provision of the Provisional
Constitution.
Examining the said provision, there should be no question that petitioners, as
elective officials under the 1973 Constitution, may continue in office but should
vacate their positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no
proclamation or executive order terminating the term of elective Barangay officials.
Thus, the issue for resolution is whether or not the designation of respondents to
replace petitioners was validly made during the one-year period which ended on
February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February
8, 1977, should be considered as the effective date of replacement and not
December 1,1986 to which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the
aforequoted provision in the Provisional Constitution must be deemed to have been
overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date,
therefore, the Provisional Constitution must be deemed to have been superseded.
Having become inoperative, respondent OIC Governor could no longer rely on
Section 2, Article III, thereof to designate respondents to the elective positions
occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially
considering that the Barangay Election Act of 1982 declares it "a policy of the State
to guarantee and promote the autonomy of the barangays to ensure their fullest
development as self-reliant communities. 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.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February
8, 1987 designating respondents as the Barangay Captain and Barangay

Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to
be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining
respondents perpetually from proceeding with the ouster/take-over of petitioners'
positions subject of this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and
Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution
took effect on February 2, 1987, the date that the plebiscite for its ratification was
held or whether it took effect on February 11, 1987, the date its ratification was
proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C.
Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by
virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it
"shall take effect immediately upon its ratification by a majority of the votes cast in
a plebiscite held for the purpose," the 1987 Constitution took effect on February 2,
1987, the date of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect
on the date its ratification shall have been ascertained and not at the time the
people cast their votes to approve or reject it." This view was actually proposed at
the Constitutional Commission deliberations, but was withdrawn by its proponent in
the face of the "overwhelming" contrary view that the Constitution "will be effective
on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully
supports the Court's judgment. It shows that the clear, unequivocal and express
intent of the Constitutional Conunission in unanimously approving (by thirty-five
votes in favor and none against) the aforequoted Section 27 of Transitory Article
XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by
the people. So that is the date of the ratification" and that "the canvass thereafter
[of the votes] is merely the mathematical confirmation of what was done during the

date of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino people in
adopting the Constitution when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12,
unless there are other commissioners who would like to present
amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert
the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner
Davide is going to propose an additional sentence, the committee
would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on
that proposed amendment.
The proposed amendment would be to delete the words "its ratification
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment
would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment. However, we
regret that we cannot accept the second proposed amendment after
the word "constitutions" because the committee feels that when we
talk of all previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
amendment so the Commission would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF
THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF
SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form
of a new sentence would not be exactly necessary and the committee
feels that it would be too much for us to impose a time frame on the
President to make the proclamation. As we would recall, Madam
President, in the approved Article on the Executive, there is a provision
which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says
that there will be a proclamation by the President that the Constitution
has been ratified, the President will naturally comply with the law in
accordance with the provisions in the Article on the Executive which we
have cited. It would be too much to impose on the President a time
frame within which she will make that declaration. It would be assumed
that the President would immediately do that after the results shall
have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption
that there will be an immediate proclamation of the results by the
President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of
the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of
the Constitution should commence on the date of the ratification, not
on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of 1976
were effective upon the proclamation of the President was that the
draft presented to the people said that the amendment will be
effective upon the proclamation made by the President. I have a

suspicion that was put in there precisely to give the President some
kind of leeway on whether to announce the ratification or not.
Therefore, we should not make this dependent on the action of the
President since this will be a manifestation of the act of the people to
be done under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact, the votes
show that the Constitution was ratified and there should be no need to
wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on
the date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing,
Madam President. We present the Constitution to a plebiscite, the
people exercise their right to vote, then the votes are canvassed by the
Commission on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may
be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance,
on January 19, 1987, then the date for the effectivity of the new
Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is
the act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we
would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment
because I cannot subscribe to the view of Commissioner Bernas, that
the date of the ratification is reckoned from the date of the casting of
the ballots. That cannot be the date of reckoning because it is a
plebiscite all over the country. We do not split the moment of casting
by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the
canvass conducted by the COMELEC or the results of the plebiscite
held all over the country. But it is necessary that there be a body which
will make the formal announcement of the results of the plebiscite. So
it is either the President or the COMELEC itself upon the completion of
the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three
days after. I think it is a fundamental principle in political law, even in
civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the
ratification. If there should be any need for presidential proclamation,
that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass
thereafter is merely the mathematical confirmation of what was done
during the date of the plebiscite and the proclamation of the President
is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have
to fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens
to the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be
a necessity for the Commission on Elections to declare the results of
the canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will
there be a necessity for the President to make a proclamation of the
results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam
President.
MR. MAAMBONG. In other words, the President may or may not make
the proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is
the Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I
would only add that when we say that the date of effectivity is on the
day of the casting of the votes, what we mean is that the Constitution
takes effect on every single minute and every single second of that

day, because the Civil Code says a day has 24 hours.So that even if
the votes are cast in the morning, the Constitution is really effective
from the previous midnight.
So that when we adopted the new rule on citizenship, the children of
Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts
to the date of the plebiscite?
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a
definite date. I think it is precisely the proposal of Commissioner
Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite,
be it the COMELEC or the President, would announce that a majority of
the votes cast on a given date was in favor of the Constitution. And
that is the date when the Constitution takes effect, apart from the fact
that the provision on the drafting or amendment of the Constitution
provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is
impossible to determine whether there is a majority. At the end of the
day of election or plebiscite, the determination is made as of that timethe majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment
of Commissioner Davide and I support the view of Commissioner
Bernas and the others because the ratification of the Constitution is on
the date the people, by a majority vote, have cast their votes in favor
of the Constitution. Even in civil law, if there is a contract, say,
between an agent and a third person and that contract is confirmed or
ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to
the date that the people have cast their affirmative votes in favor of
the Constitution.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if
he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make
the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite called for the purpose and
shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his
hand.)
The results show 35 votes in favor and none against; Section 12 is
approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution
took effect on the date of its ratification in the plebiscite held on February 2, 1987,
that: (1) the Provisional Constitution promulgated on March 25, 1986 must be
deemed to have been superseded by the 1987 Constitution on the same date
February 2, 1987 and (2) by and after said date, February 2, 1987, absent any
saying clause to the contrary in the Transitory Article of the Constitution, respondent
OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement
of petitioners by respondent OIC Governor's designation on February 8, 1987 of
their successors could no longer produce any legal force and effect. While the
Provisional Constitution provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this period was
shortened by the ratification and effectivity on February 2, 1987 of the Constitution.
Had the intention of the framers of the Constitution been otherwise, they would
have so provided for in the Transitory Article, as indeed they provided for
multifarious transitory provisions in twenty six sections of Article XVIII, e.g.
extension of the six-year term of the incumbent President and Vice-President to
noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the
first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55
city fiscals reported extended (by) the President on February 2, 1987 . . . could be
open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article
VIII of the Constitution which require prior endorsement thereof by the Judicial and
Bar Council created under the Constitution. It should be stated for the record that
the reported date of the appointments, February 2, 1987, is incorrect. The official
records of the Court show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987 and they were all
appointed on or before January 31, 1987. 3 (Similarly, the records of the Department
of Justice likewise show that the appointment papers of the last batch of provincial
and city fiscals signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to the
Department on February 1, 1987.) It is also a matter of record that since February 2,
1987, no appointments to the Judiciary have been extended by the President,
pending the constitution of the Judicial and Bar Council, indicating that the Chief
Executive has likewise considered February 2, 1987 as the effective date of the
Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with
more telling effect than the tones of thunder. She has written another persuasive
opinion, and I am delighted to concur. I note that it in effect affirms my dissents in
the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local
OICs may no longer be summarily replaced, having acquired security of tenure
under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new
Constitution was ratified. I yield to that better view and agree with her ponencia
completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the
Provisional Constitution with respect to the tenure of government functionaries, as
follows:
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
It is my reading of this provision that the Constitution takes effect on the date its
ratification shall have been ascertained, and not at the time the people cast their
votes to approve or reject it. For it cannot be logically said that Constitution was
ratified during such a plebiscite, when the will of the people as of that time, had not,
and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government
performed acts that would have been valid under the Provisional Constitution but
would otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55
city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections
8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy,
Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the
Constitution as well as the amendments thereto from the date it is proclaimed
ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and
effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the
Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief Justice,
Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirtyfive and all amendments
thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595,
proclaiming the ratification of the 1976 amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments
embodied in this certificate as duly ratified by the Filipino people in the referendumplebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and
effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President
shall have proclaimed that they have been ratified by a majority of the
votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments of Section 7,
Article X of the Constitution" (lengthening the terms of office of judges and justices).
The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of
the votes cast in the plebiscite held, together with the election for local
officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the
proposed amendment shall take effect on the date the incumbent President/Prime
Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in
the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in
Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force
and Effect." The Proclamation, in declaring the said amendments duly approved,
further declared them "[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent
Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section
2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino
People, for Ratification or Rejection, the Amendment to the Constitution of the
Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly,

in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds
Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass
and proclaim the result of the plebiscite using the certificates
submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the
Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in
Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states
that the amendments:
....are therefore effective and in full force and effect as of the date of
this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and
Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President
of the Philippines shall proclaim that they have been ratified by a
majority of the votes cast in the plebiscite held for the purpose, but not
later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at
which it is submitted to the people for their ratification pursuant to
Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their
ratification and not at the time of the plebiscite is a view that is not peculiar to the
Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947
plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses
(of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The
April 9, 1947 Resolution makes no mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on
February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by
the Constitutional Commission of 1986, including the Ordinance

appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took
effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing,
that the new Charter was ratified on February 2, 1987, does not in any way weaken
this dissent. As I stated, the remark was said in passing-we did not resolve the case
on account of a categorical holding that the 1987 Constitution came to life on
February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the
challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution
not being then as yet in force.
Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution
took effect on February 2, 1987, the date that the plebiscite for its ratification was
held or whether it took effect on February 11, 1987, the date its ratification was
proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C.
Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by
virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it
"shall take effect immediately upon its ratification by a majority of the votes cast in
a plebiscite held for the purpose," the 1987 Constitution took effect on February 2,
1987, the date of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect
on the date its ratification shall have been ascertained and not at the time the
people cast their votes to approve or reject it." This view was actually proposed at
the Constitutional Commission deliberations, but was withdrawn by its proponent in
the face of the "overwhelming" contrary view that the Constitution "will be effective
on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully
supports the Court's judgment. It shows that the clear, unequivocal and express
intent of the Constitutional Conunission in unanimously approving (by thirty-five

votes in favor and none against) the aforequoted Section 27 of Transitory Article
XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by
the people. So that is the date of the ratification" and that "the canvass thereafter
[of the votes] is merely the mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino people in
adopting the Constitution when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12,
unless there are other commissioners who would like to present
amendments.
MR. DAVIDE. Madam President.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert
the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner
Davide is going to propose an additional sentence, the committee
would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on
that proposed amendment.
The proposed amendment would be to delete the words "its ratification
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment
would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment. However, we
regret that we cannot accept the second proposed amendment after
the word "constitutions" because the committee feels that when we
talk of all previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second

amendment so the Commission would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF
THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF
SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form
of a new sentence would not be exactly necessary and the committee
feels that it would be too much for us to impose a time frame on the
President to make the proclamation. As we would recall, Madam
President, in the approved Article on the Executive, there is a provision
which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says
that there will be a proclamation by the President that the Constitution
has been ratified, the President will naturally comply with the law in
accordance with the provisions in the Article on the Executive which we
have cited. It would be too much to impose on the President a time
frame within which she will make that declaration. It would be assumed
that the President would immediately do that after the results shall
have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption
that there will be an immediate proclamation of the results by the
President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of
the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of
the Constitution should commence on the date of the ratification, not
on the date of the proclamation of the President. What is confusing, I

think, is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of 1976
were effective upon the proclamation of the President was that the
draft presented to the people said that the amendment will be
effective upon the proclamation made by the President. I have a
suspicion that was put in there precisely to give the President some
kind of leeway on whether to announce the ratification or not.
Therefore, we should not make this dependent on the action of the
President since this will be a manifestation of the act of the people to
be done under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact, the votes
show that the Constitution was ratified and there should be no need to
wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on
the date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing,
Madam President. We present the Constitution to a plebiscite, the
people exercise their right to vote, then the votes are canvassed by the
Commission on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may
be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance,
on January 19, 1987, then the date for the effectivity of the new
Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is
the act of saying "yes" is done when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
MR. MAAMBONG. With that statement of Commissioner Bernas, we
would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment
because I cannot subscribe to the view of Commissioner Bernas, that
the date of the ratification is reckoned from the date of the casting of
the ballots. That cannot be the date of reckoning because it is a
plebiscite all over the country. We do not split the moment of casting
by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the
canvass conducted by the COMELEC or the results of the plebiscite
held all over the country. But it is necessary that there be a body which
will make the formal announcement of the results of the plebiscite. So
it is either the President or the COMELEC itself upon the completion of
the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three
days after. I think it is a fundamental principle in political law, even in
civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the
ratification. If there should be any need for presidential proclamation,
that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass

thereafter is merely the mathematical confirmation of what was done
during the date of the plebiscite and the proclamation of the President
is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have
to fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens
to the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be
a necessity for the Commission on Elections to declare the results of
the canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will
there be a necessity for the President to make a proclamation of the
results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam
President.
MR. MAAMBONG. In other words, the President may or may not make
the proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is
the Commission on Elections which announces the results.
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?
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a
definite date. I think it is precisely the proposal of Commissioner
Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite,
be it the COMELEC or the President, would announce that a majority of
the votes cast on a given date was in favor of the Constitution. And
that is the date when the Constitution takes effect, apart from the fact
that the provision on the drafting or amendment of the Constitution
provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is

impossible to determine whether there is a majority. At the end of the
day of election or plebiscite, the determination is made as of that timethe majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment
of Commissioner Davide and I support the view of Commissioner
Bernas and the others because the ratification of the Constitution is on
the date the people, by a majority vote, have cast their votes in favor
of the Constitution. Even in civil law, if there is a contract, say,
between an agent and a third person and that contract is confirmed or
ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to
the date that the people have cast their affirmative votes in favor of
the Constitution.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if
he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make
the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by
a majority of the votes cast in a plebiscite called for the purpose and
shall supersede all previous Constitutions.
We ask for a vote, Madam President.

VOTING
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his
hand.)
The results show 35 votes in favor and none against; Section 12 is
approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution
took effect on the date of its ratification in the plebiscite held on February 2, 1987,
that: (1) the Provisional Constitution promulgated on March 25, 1986 must be
deemed to have been superseded by the 1987 Constitution on the same date
February 2, 1987 and (2) by and after said date, February 2, 1987, absent any
saying clause to the contrary in the Transitory Article of the Constitution, respondent
OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement
of petitioners by respondent OIC Governor's designation on February 8, 1987 of
their successors could no longer produce any legal force and effect. While the
Provisional Constitution provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this period was
shortened by the ratification and effectivity on February 2, 1987 of the Constitution.
Had the intention of the framers of the Constitution been otherwise, they would
have so provided for in the Transitory Article, as indeed they provided for
multifarious transitory provisions in twenty six sections of Article XVIII, e.g.
extension of the six-year term of the incumbent President and Vice-President to
noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the
first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55
city fiscals reported extended (by) the President on February 2, 1987 . . . could be
open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article
VIII of the Constitution which require prior endorsement thereof by the Judicial and
Bar Council created under the Constitution. It should be stated for the record that
the reported date of the appointments, February 2, 1987, is incorrect. The official
records of the Court show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987 and they were all
appointed on or before January 31, 1987. 3 (Similarly, the records of the Department
of Justice likewise show that the appointment papers of the last batch of provincial
and city fiscals signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to the
Department on February 1, 1987.) It is also a matter of record that since February 2,

1987, no appointments to the Judiciary have been extended by the President,
pending the constitution of the Judicial and Bar Council, indicating that the Chief
Executive has likewise considered February 2, 1987 as the effective date of the
Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with
more telling effect than the tones of thunder. She has written another persuasive
opinion, and I am delighted to concur. I note that it in effect affirms my dissents in
the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local
OICs may no longer be summarily replaced, having acquired security of tenure
under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new
Constitution was ratified. I yield to that better view and agree with her ponencia
completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the
Provisional Constitution with respect to the tenure of government functionaries, as
follows:
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

It is my reading of this provision that the Constitution takes effect on the date its
ratification shall have been ascertained, and not at the time the people cast their
votes to approve or reject it. For it cannot be logically said that Constitution was
ratified during such a plebiscite, when the will of the people as of that time, had not,
and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government
performed acts that would have been valid under the Provisional Constitution but
would otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55
city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections
8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy,
Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the
Constitution as well as the amendments thereto from the date it is proclaimed
ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and
effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the
Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief Justice,
Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirtyfive and all amendments
thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595,
proclaiming the ratification of the 1976 amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments
embodied in this certificate as duly ratified by the Filipino people in the referendum
plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and
effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President
shall have proclaimed that they have been ratified by a majority of the
votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments of Section 7,
Article X of the Constitution" (lengthening the terms of office of judges and justices).
The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of
the votes cast in the plebiscite held, together with the election for local
officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the
proposed amendment shall take effect on the date the incumbent President/Prime
Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in
the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in
Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force
and Effect." The Proclamation, in declaring the said amendments duly approved,
further declared them "[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent
Assembly, which parented these amendments, the same:

... shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section
2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino
People, for Ratification or Rejection, the Amendment to the Constitution of the
Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly,
in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds
Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass
and proclaim the result of the plebiscite using the certificates
submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the
Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in
Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states
that the amendments:
....are therefore effective and in full force and effect as of the date of
this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and
Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President
of the Philippines shall proclaim that they have been ratified by a
majority of the votes cast in the plebiscite held for the purpose, but not
later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a
majority of the votes cast in an election/plebiscite at which it is submitted to the
people for their ratification pursuant to Section 2 of Article XVI of the Constitution,
as amended.
That a Constitution or amendments thereto take effect upon proclamation of their
ratification and not at the time of the plebiscite is a view that is not peculiar to the
Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947
plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses
(of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The
April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly,

when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11,
1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by
the Constitutional Commission of 1986, including the Ordinance
appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took
effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing,
that the new Charter was ratified on February 2, 1987, does not in any way weaken
this dissent. As I stated, the remark was said in passing-we did not resolve the case
on account of a categorical holding that the 1987 Constitution came to life on
February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the
challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution
not being then as yet in force.
17. GONZALES V. COMELEC

G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE
COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER,
respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner, vs.COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN,
petitioners, vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose

amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree
No. 991 calling for a national referendum on October 16, 1976 for the Citizens
Assemblies ("barangays") to resolve, among other things, the issues of martial law,
the I . assembly, its replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of his present
powers.1
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 referendum-plebiscite 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
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 referendumplebiscite 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:
(1) Do you want martial law to be continued?
(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.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more
than 120, unless otherwise provided by law, shall include the incumbent President
of the Philippines, representatives elected from the different regions of the nation,
those who shall not be less than eighteen years of age elected by their respective
sectors, and those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the basis of a
uniform and progressive ratio while the sectors shall be determined by law. The
number of representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.

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.
5. The incumbent President shall continue to exercise legislative powers until
martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may,
in order to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments
shall continue in full force and effect.
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 provisions. 6 The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys
that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one,
lying outside the domain of judicial review. We disagree. The amending process both
as to proposal and ratification, raises a judicial question. 8 This is especially true in
cases where the power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the
power to propose amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory provisions). After that
period, and the regular National Assembly in its active session, the power to
propose amendments becomes ipso facto the prerogative of the regular National
Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course
has not been followed. Rather than calling the National Assembly to constitute itself
into a constituent assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential Decree
1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for amendments, written in lambent words in
the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive
agreement, or law may shall be heard and decided by the Supreme Court en banc
and no treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme Court has the
last word in the construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in the Constitution,
is in form a delegated and hence a limited power, so that the Supreme Court is
vested with that authorities to determine whether that power has been discharged
within its limits.

Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the controversy refers to the legality or validity
of the contested act, that matter is definitely justiciable or non-political. What is in
the heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the Constitution
provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed
was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of nonjusticiability, that the question of the President's authority to propose amendments
and the regularity of the procedure adopted for submission of the proposal to the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious
circle. Is it not that the people themselves, by their sovereign act, provided for the
authority and procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people themselves of
course who exercise no power of judicial but by the Supreme Court in whom the
people themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been observed
or not. And, this inquiry must be done a prior not a posterior i.e., before the
submission to and ratification by the people.
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 12 involving 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
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

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
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may
be proposed by the National Assembly upon a vote of three-fourths 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 calling such a convention to the electorate in an
election.
SECTION 2. 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.
In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:
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 President. 20 According
to Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as
imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any two or
more types of power, and certainly a total disregard of the separation of powers is,
as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal
times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of the state and its
independent existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even if this means
the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the
more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential
systems of government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must not
only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. 21 John Locke, on the other hand, claims for
the executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power
had not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a
conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise
his powers and prerogatives under the nineteen hundred and thirtyfive Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim
National Assembly to elect the interim President and the interim Prime
Minister, who shall then exercise their respective powers vested by this
Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of
the land, and shall remain valid, binding, and effective even after lifting
of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative
powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is
an extremely important factor in any constitutional dictatorship which extends over
a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The
steady increase in executive power is not too much a cause for as the steady
increase in the magnitude and complexity of the problems the President has been
called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis greater than
war. In short, while conventional constitutional law just confines the President's
power as Commander-in-Chief to the direction of the operation of the national
forces, yet the facts of our political, social, and economic disturbances had
convincingly shown that in meeting the same, indefinite power should be attributed
to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the
interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President opted to
defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the President
(See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign
will, the President decided not to call the interim National Assembly. Would it then
be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's
legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why
he cannot validly discharge the function of that Assembly to propose amendments

to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency and the
Supreme Court in operation, the urges of absolute necessity render it imperative
upon the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and
decline to undertake the amending process would leave the governmental
machineries at a stalemate or create in the powers of the State a destructive
vacuum, thereby impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After
all, constituent assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of
January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President
of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National ReferendumPlebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily
seen. In the Philippines, a republican and unitary state, sovereignty "resides in the
people and all government authority emanates from them .30 In its fourth meaning,

Savigny would treat people as "that particular organized assembly of individuals in
which, according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional legislator, namely
the people, is sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a
self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single man.
Rather, they are the collated thoughts of the sovereign will reduced only into
enabling forms by the authority who can presently exercise the powers of the
government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the
people themselves implemented only by the authority of the President. Indeed, it
may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a
particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you
want martial law to be continued? - is a referendum question, wherein the 15-year
olds may participate. This was prompted by the desire of the Government to reach
the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on
the proposed amendments, only those of voting age of 18 years may participate.
This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18
years old and above which will have valid bearing on the results. The fact that the
voting populace are simultaneously asked to answer the referendum question and
the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear
of commingled votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot
box for voters fifteen years of age and under eighteen shall be counted ahead of the
ballots of voters eighteen years and above contained in another ballot box. And, the

results of the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of assessing
public reaction to the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the executive power of
the President. 39 It is participated in by all citizens from the age of fifteen, regardless
of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally
associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total suppression of
that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on
the issues, as he is not interested in winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and clear their adverse views
on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees have
been held by the Civil Service Commission free to participate in public discussion
and even campaign for their stand on the referendum-plebiscite issues. 44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too
short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been living
with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in

three consecutive issues of the Official Gazette of the women's suffrage amendment
to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski was published in only three consecutive issues of the Official
Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of
the President and Vice President, and the creation of the Commission on Elections,
20 days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to
the specific date when the plebiscite shall be held, but simply states that it "shall be
held not later than three months after the approval of such amendment or revision."
In Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time within
which the people may act. This is because proposal and ratification are not treated
as unrelated acts, but as succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in time; second, it is only
when there is deemed to be a necessity therefor that amendments are to be
proposed, the reasonable implication being that when proposed, they are to be
considered and disposed of presently, and third, ratification is but the expression of
the approbation of the people, hence, it must be done contemporaneously. 47 In the
words of Jameson, "(a)n alteration of the Constitution proposed today has relation to
the sentiment and the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as waived, and
not again to be voted upon, unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?
2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes

Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while
Associate Justices Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus raising
serious doubts as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people.
Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore beyond the competence
and cognizance of this Court, Associate Justice Fernando adheres to his concurrence
in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the constituent power to propose the
amendments, etc., as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or rejection under the
standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino
vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in opposition thereto, as well as the arguments
adduced by the counsels of the parties at the hearing had on October 7 and 8,
1976, three vital issues readily project themselves as the centers of controversy,
namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the environmental
amendments to the Constitution as well as set up the required machineries and
(3) Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically on the matter
of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78
Phil. 1), inceptively announced the dictum thatProposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charges by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive.
If on grounds of expediency scrupulous attention of the judiciary be
needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itselfThe force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and
14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs.
Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a constituent
assembly-violates the Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales vs.
Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786787).
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.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil.
1051)... the term 'political question' connotes, in legal parlance, what it
means in ordinarily parlance, namely, a question of policy in matters
concerning the government of a State, as a body politic. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.'
Otherwise, said qualifications, conditions or limitations - particularly those
prescribed or imposed by the Constitution - would be set at naught." (Javellana vs.
Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional validity
of the presidential acts of proposing amendments to the Constitution and of calling
a referendum-plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise of the authority
claimed or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a question
purely of legality determinable thru interpretation and construction of the letter and
spirit of the Constitution by the Court as the final arbiter in the delineation of
constitutional boundaries and the allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially in
these parlous years, would be to abdicate its constitutional powers, shirk its
constitutional responsibility, and deny the people their ultimate recourse for judicial
determination.
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented both
here and elsewhere. Its solution, I believe, can be found and unraveled only by a

critical assessment of the existing legal order in the light of the prevailing political
and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there be any
such prescription for the amendatory process as invariable there is because one of
the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which
formal changes in the fundamental law may be effected the same would ordinarily
be the controlling criterion for the validity of the amendments sought.
Unfortunately, however, during the present transition period of our political
development, no express provision is extant in the Constitution regarding the
agency or agent by whom and the procedure by which amendments thereto may be
proposed and ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at least two distinctly
in the transition from the old system of government under the 1935 Constitution to
the new one established by the 1973 Constitution.
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
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.
SEC. 2. Any amendment to, or revision of, this Constitution shall be
unequivocally contemplate amendments after the regular Government shall have
become fully operative, referring as they do to the National Assembly which will
come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the aforesaid first
stage and, if in the affirmative, by whom and in what manner such amendments
may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a
mere declaration of the traditions of a nation but more the embodiment of a
people's hopes and aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to the living social
organism they seek to fashion and govern. If it is conceded that "the political or
philosophical aphorism of one generation is doubted by the next and entirely
discarded by the third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive, progress and endure.
On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present
- which is understandably the most critical - the need for change may be most
pressing and imperative, and to disavow the existence of the right to amend the
Constitution would be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic conception of the
Constitution by depriving it of its means of growth. Such a result obviously could not
have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass
before the convocation of the interim National Assembly was not anticipated, hence,
the omission of an express mandate to govern the said situation in so far as
amendments are concerned. But such omission through inadvertence should not,
because it cannot, negate the sovereign power of the people to amend the
fundamental charter that governs their lives and their future and perhaps even the
very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious
mode of amending the Constitution during the transition period. For, while under
Article XVI thereof, proposals for amendment may be made directly by the regular
National Assembly by a vote of at least three-fourths of all its members, under
Section 15 of Article XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the disparity in the vote
requirement are revealing. The can only signify a recognition of the need to
facilitate the adoption of amendments during the second stage of the transition
period so that the interim National Assembly will be able, in a manner of speaking,
to iron out the kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the establishment of the
regular Government. In this contest, therefore, it is inutile speculation to assume
that the Constitution was intended to render impotent or ar the effectuation of
needful change at an even more critical period - the first stage. With greater reason,
therefore, must the right and power to amend the Constitution during the first stage
of te transition period be upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only by
convening the interim National Assembly. That is to say and require that he said
stage must first be brought to an end before any amendment may be proposed and
ratified. Settled jurisprudence does not square with such a proposition. As aptly
noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly
because they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of martial law would last. Indeed, the
framers committed to the sound judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent such
a taint, the matter is solely in the keeping of the President. To thus content that only
by convening the interim National Assembly may the Constitution be amended at
this time would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore,
to sustain such a contention would not only negate the mandate so resoundingly
expressed by the people in two national referenda against the immediate convening
of the interim National Assembly, but as well deride their overwhelming approval of
the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom, then,

may proposals for the amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confuse with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the proposition that, in
default of an express grant thereof, the legislature - traditionally the delegated
repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by
constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-making agency and at this stage of the transition
period the law-making authority is firmly recognized as being lodged in the
President, the said constituent power should now logically be in the hands of te
President who may thus exercise it in place of the interim National Assembly.
Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the
power to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours - t o make, and, hence,
to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown
that the people, inadvertently or otherwise, have not delegated that power to
inadvertently or otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it follows of necessity
that the same remains with them for them to exercise in the manner they see fit
and through the agency they choose. And, even if it were conceded that - as it is
reputedly the rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power delegated which
they may not thereafter unilaterally reclaim from the delegate, there would be no
violence donde to such rule, assuming it to be applicable here, inasmuch as that
power, under the environmental circumstance adverted to, has not been delegated
to anyone in the first place. The constituent power during the first stage of the
transition period belongs to and remains with the people, and accordingly may be
exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious
immorality" of the unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso facto members of the
interim National Assembly by the mere fiat of voting for the transitory provisions of
the Constitution. and the stark reality that the unwieldy political monstrosity that
the interim Assembly portended to be would have proven to be a veritable drain on
the meager financial resources of a nation struggling for survival, have
unequivocally put their foot down, as it were, on the convocation thereof. But this
patently salutary decision of the people proved to be double-edged. It likewise
bound the political machinery of the Government in a virtual straight-jacket and
consigned the political evolution of the nation into a state of suspended animation.

Faced with the ensuing dilemma, the people understandably agitated for a solution.
Through consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an
overwhelming sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe will be an
appropriate agency to eventually take over the law-making power and thus pave
the way for the early lifting of martial rule. In pursuit of this sentiment, and to
translate its constraints into concrete action, the Pambansang Katipunan ng
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong
Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan ng
mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come
forward with definitive proposals for the amendment of the Constitution, and,
choosing the President the only political arm of the State at this time through which
that decision could be implemented and the end in view attained as their
spokesman, proposed the amendments under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendumplebiscite are factually not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. 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 being ultra vires. 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 alter ego of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of
the proposed amendments for ratification from the standpoint of time. The thesis
cannot be disputed that a fair submission presupposes an adequate time lapse to
enable the people to be sufficiently enlightened on the merits or demerits of the
amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the crystallization of sentiments

that for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence, unlike
proposals emanating from a legislative body, the same cannot but be said to have
been mulled over, pondered upon, debated, discussed and sufficiently understood
by the great masses of the nation long before they ripened into formal proposals.
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, whose treatise is the latest to be published,
has this summary of what he considers the present state of American law: 'The
Milligan and Duncan cases show plainly that martial law is the public law of
necessity. Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the high Court
has affirmed, an unbending rule of law that the exercise of military power, where
the rights of the citizen are concerned, may, never be pushed beyond what the
exigency requires. If martial law rule survive the necessities on which alone it rests,
for even a single minute it becomes a mere exercise of lawless violence.' Further:
Sterling v. Constantin is of basic importance. Before it, a number of decisions,
including one the highest Court, went or on the theory that the executive had a free
hand in taking martial law measures. Under them, it has been widely supposed that
in proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them. Under Sterling v.
Constantin, where martial law measures impinge upon personal or property rightsnormally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is
not of itself conclusive of the necessity.'" 15

There was likewise an effort on my part to show what for me is the legal effect of
martial law being expressly provided for in the Constitution rather than being solely
predicated on the common law power based on the urgent need for it because of
compelling circumstances incident to the state of actual clash of arms: "It is not to
be lost sight of that the basis for the declaration of martial law in the Philippines is
not mere necessity but an explicit constitutional provision. On the other hand,
Milligan, which furnished the foundation for Sterling and Duncan had its roots in the
English common law. There is pertinence therefore in ascertaining its significance
under that system. According to the noted English author, Dicey: 'Martial law,' in the
proper sense of that term, , in which - it means the suspension of ordinary law and
the temporary government of a country or parts of it be military tribunals, is
unknown to the law of England. We have nothing equivalent to what is called in
France the "Declaration of the State of Siege," under which the authority ordinarily
vested in the civil power for the maintenance of order and police passes entirely to
the army (autorite militaire). This is an unmistakable proof of the permanent
supremacy of the law under our constitution. There was this qualification: 'Martial
law is sometimes employed as a name for the common law right of the Crown and
its servants to repel force by force in the case of invasion, insurrection, riot, or
generally of any violent resistance to the law. This right, or power, is essential to the
very existence of orderly government, and is most assuredly recognized in the most
ample manner by the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown has the right to put
down breaches of the peace. Every subject, whether a civilian or a soldier, whether
what is called a servant of the government,' such for example as a policeman, or a
person in no way connected with the administration, not only has the right, but is,
as a matter of legal duty, bound to assist in putting down breaches of the peace. No
doubt policemen or soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to suppress a riot, but it is
clear that all loyal subjects are bound to take their part in the suppression of riots."
16
Commitment to such an approach results in my inability to subscribe to the belief

that martial law in terms of what is provided both in the 1935 and the present
Constitution, affords sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering the juristic theory on
which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact that
before the former Congress could meet in regular session anew, the present
Constitution was adopted, abolishing it and providing for an interim National
Assembly, which has not been convened. 18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he spoke
of martial rule as "a device designed for use in the crisis of invasion or rebellion. It
may be most precisely defined as an extension of military government to the
civilian population, the substitution of the will of a military commander for the will of
the people's elected government." 19 Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law connotation, less

than duly mindful of the jural effects of its inclusion in the Constitution itself as a
legitimate device for coping with emergency conditions in times of grave danger,
but always subject to attendant limitations in accordance with the fundamental
postulate of a charter's supremacy, I felt justified in concluding: "Happily for the
Philippines, the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy
of liberty possess relevance. lt cannot be said that the martial rule concept of
Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it
can be reconciled with our Constitution. What is undeniable is that President Marcos
has repeatedly maintained that Proclamation No. 1081 was precisely based on the
Constitution and that the validity of acts taken there under could be passed upon by
the Supreme court. For me that is quite reassuring, persuaded as I am likewise that
the week- of Rossiter is opposed to the fundamental concept of our polity, which
puts a premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion his to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on
Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that
as Commander-in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees during the period
Martial Law essential to the security and preservation of the Republic, to the
defense of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the
threat thereof as well as to meet the impact of a worldwide recession, inflation or
economic crisis which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses
Juristic significant in this jurisdiction. What, for me at least, gives caused for concern
is that with the opinion of the Court this intrusion of what I would consider an alien
element in the limited concept of martial law as set forth in the Constitution would
be allowed further incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work approving tile "concentration of
governmental power in a democracy [as] a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last chapter, just
three pages later, he touched explicitly on the undesirable aspect of a constitutional
dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration
of martial law or the passage of an enabling act is a step which must always be
feared and sometimes bitterly resisted, for it is at once an admission of the
incapacity of democratic institutions to defend the order within which they function
and a too conscious employment of powers and methods long ago outlawed as
destructive of constitutional government. Executive legislation, state control of
popular liberties, military courts, and arbitrary executive action were governmental
features attacked by the men who fought for freedom not because they were
inefficient or unsuccessful, but because they were dangerous and oppressive. The
reinstitution of any of these features is a perilous matter, a step to be taken only
when the dangers to a free state will be greater if the dictatorial institution is not
adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the view of
those of my brethren who would accord recognition to the Rossiter concept of

concentration of governmental power in the Executive during periods of crisis. This
is not to lose sight of the undeniable fact that in this country through the zeal, vigor,
and energy lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be found in a
recent address of the First Lady before the delegates to the 1976 international
Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has
been done in so brief 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 competence. Again I find myself unable to join readily in that
conviction. It does seem to me that the metes and bounds of the executive domain,
while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction
of the principle that underlies Aquino v. Commission on Elections as to the validity
of the exercise of the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been reached. I
cannot simply ignore the vigorous plea of petitioners that there is a constitutional
deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team
National Assembly. 27 The learned advocacy reflected in the pleadings as well as the
oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave
doubts in my mind that the Aquino doctrine as to the possession of legislative
competence by the President during this period of transition with the interim
lawmaking body not called into session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach would
lose sight of the distinction between matters legislative and constituent. That is
implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In
their casebook published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known authority on
the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the
general grant of legislative power for such grant does not carry with it the right 'to
erect the state, institute the form of its government,' which is considered a function
inherent in the people. Congressional lawmaking authority is limited to the power
of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that

distinction be preserved, then for me the aforecited Aquino decision does not reach
the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well
as that of the then Justice, now Chief Justice, Castro, support for the ruling that the
President cannot be deemed as devoid of legislative power during this transition
stage is supplied by implications from explicit constitutional provisions. 13 That is not
the case with the power to propose amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a
dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel confident therefore that a negative
vote on my part would be warranted. What would justify the step taken by the
President, even if no complete acceptance be accorded to the view that he was a
mere conduit of the barangays on this matter, is that as noted in both qualified
concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the
legislative and appropriately powers are concerned, is the necessity that unless
such authority be recognized, there may be paralyzation of governmental activities,
While not squarely applicable, such an approach has, to my mind, a persuasive
quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle that
judicial review goes no further than to checking clear infractions of the fundamental
law, except in the field of human rights where a much greater vigilance is required,
That is to make of the Constitution a pathway to rather than a barrier against a
desirable objective. -As shown by my concurring and dissenting opinion in Tolentino
Commission on Elections '34 a pre-martial law decision, the fundamental postulate
that sovereignty resides in the people exerts a compelling force requiring the
judiciary to refrain as much as possible from denying the people the opportunity to
make known their wishes on matters of the utmost import for the life of the nation,
Constitutional amendments fall in that category. I am fortified in that conviction by
the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion
in Aytona v. Castillo,17 Which I consider applicable to the present situation. These
are his words: "It is well settled that the granting of writs of prohibition and
mandamus is ordinarily within the sound discretion of the courts, to be exercised on
equitable principles, and that said writs should be issued when the right to the relief
is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand,
no injunction was issued. This was evident in the dispositive portion where
judgment was rendered "declaring that respondent Executive Secretary had and has
no power to authorize the importation in question; that he exceeded his jurisdiction
in granting said authority; that said importation is not sanctioned by law and is
contrary to its provisions; and that, for lack of the requisite majority, the injunction
prayed for must be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on my part would
necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle

in any way the action taken by petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the rule of law. Even if their contention as
to lack of presidential power be accepted in their entirety, however, there is still
discretion that may be exercised on the matter, prohibition being an equitable
remedy. There are, for me, potent considerations that argue against acceding to the
plea. With the prospect of the interim National Assembly being convened being dim,
if not non- existent, if only because of the results in three previous referenda, there
would be no constitutional agency other than the Executive who could propose
amendments, which, as noted. may urgently press for adoption. Of even greater
weight, to my mind, is the pronouncement by the President that the plebiscite is
intended not only to solve a constitutional anomaly with the country devoid of a
legislative body but also to provide. the machinery be which the termination of
martial law could be hastened. That is a consummation devoutly to be wished. That
does militate strongly against the stand of petitioners. The obstruction they would
pose may be fraught with pernicious consequences. It may not be amiss to refer
anew to what I deem the cardinal character of the jural postulate explicitly affirmed
in both the 1935 and the present Constitutions that sovereignty resides in the
people. So I made clear in Tolentino v. Commission on Elections and thereafter in my
dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their keeping. The
role of leadership is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner sanctioned by law and
with due care that there be no mistake in its appraisal, that should be controlling.
There is all the more reason then to encourage their participation in the power
process. That is to make the regime truly democratic. Constitutional orthodoxy
requires, however, that the fundamental law be followed. So I would interpret Laski,
43
Corwin, 44 Lerner, 45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its commitment
to the principle that the amending process gives rise to a justiciable rather than a
political question. So, it has been since the leading case of Gonzales v. Commission
on Election S. 48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The
Executive Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in Mabanag v. Lopez
Vito. 52 This is not to deny that the federal rule in the United States as set forth in
the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent
State court decisions, supply ammunition to such a contention., 51 That may be the
case in the United States, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the illustrious
Claro M. Recto: "It is one of the paradoxes a democracy that the people of times
place more confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty 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.
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 1973 Constitution grants
to the incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for ratification in a
plebiscite. The 1935 Constitution expressly vests the constituent power in Congress,
be a three-fourths vote of all its members, to propose amendments or call a
constitutional convention for the purpose The 1973 Constitution expressly vests the
constituent power in the regular National Assembly to propose amendments (by a
three-fourths vote of all its members) or "call a constitutional convention" (by a twothirds vote of all its members) or "submit the question of calling such convention to
the electorate in an election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the constituent
power during the period of transition in the interim National Assembly "upon special
call be the Prime Minister (the incumbent President 3)... by a majority ore of all its
members (to) propose amendments."
Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the
President's questioned decrease proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and
legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case
at bar In therein declaring null and void the acts of the 1971 Constitutional
Convention and of the Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from 21 years to 18
years, and issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the people
As long as an amendment is formulated and submitted under the aegis
of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court ; 8

The real issue here cannot be whether or not the amending process delineated by
the present Constitution may be disregarded in favor of allowing the sovereign
people to express their decision on the proposed amendments, if only because it is
evident that the very Idea of departing from the fundamental law is anachronistic in
the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9
and
-Accordingly barred the plebiscite as improper and premature, since "the provisional
nature of the proposed amendments and the manner of its submission to the people
for ratification or rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending process as set forth in the Article on
Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is
clear that where the proposed amendments are violative of the Constitutional
mandate on the amending process not merely for being a "partial amendment" of a
"temporary or provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that
it is only the interim National Assembly, upon special call of the interim Prime
Minister, bu a 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 Constitution
must be complied with. This means, under the teaching of Tolentino that the
proposed amendments must validly come from the constitutional agency vested
with the constituent power to do so, namely, the interim National Assembly, and not

from the executive power as vested in the Prime Minister (the incumbent President)
with the assistance of the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the people for
as was aptly stated by Cooley "Me voice of the people, acting in their sovereign
capacity, can be of legal force only when expressed at the times and under the
conditions which they themselves have prescribed and pointed out by the
Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest
order (and directly elected by the people to speak their voice) is sovereign, in as
such, its acts impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may
be amended, but it is our will that the amendment must be proposed and submitted
to Us for ratification only in the manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power, second to none, of the
people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignity, ever constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and study. It
is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent power
to proposed amendments is the only way to fulfill the express mandate of the
Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting as in of a Comelec resolution banning the use of political taped jingles by
candidates for Constitutional Convention delegates int he special 1970 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 functionary, is a postulate of our system of government. That is to amnifst
fealty to the rule of law, with priority accorded to that which occupies the topmost

rung in the legal heirarchy. The three departments of government in the discharge
of the functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental law."
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
importance of the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify
another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is
not to be allowed to defeat another, if by any reasonable construction
the two can be made to stand together. 36
The transcendental constituent power to propose and approve amendments to the
Constitution as well as set up the machinery and prescribe the procedure for the
ratification of his proposals has been withheld from the President (Prime Minister) as
sole repository of the Executive Power, presumably in view of the immense powers
already vested in him by the Constitution but just as importantly, because by the
very nature of the constituent power, such amendments proposals have to be
prepared, deliberated and matured by a deliberative assembly of representatives
such as the interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation of the
l971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power (Congress
or the Constitutional Convention) really determined the amendments to the
Constitution since the proposals were invariably ratified by the people 37 thus:
"although the people have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances attending its

exercise, as effective as one might otherwise think: that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be
determined by the Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of delegates thereto ... "
38
12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive, Legislative
and Judicial Departments. 39
18. DEFENSOR-SANTIAGO V. COMELEC

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), petitionersintervenors.
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
fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order,
as well as the Petition on which the signatures shall be affixed, be published in
newspapers of general and local circulation, under the control and supervision of
the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI, 7 Section 4 of Article VII, 8 and Section 8 of Article X 9
of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on
the 1987 Constitution" 10 embodying the proposed amendments which consist in

the deletion from the aforecited sections of the provisions concerning term limits,
and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT

OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the attached
Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in
three (3) daily newspapers of general circulation at his own expense" not later than
9 December 1996; and (b) setting the case for hearing on 12 December 1996 at
10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for
Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers, and representatives of, or counsel for,
the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang
Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable by the
COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago,

Alexander Padilla, and Maria Isabel Ongpin filed this special civil action for
prohibition raising the following arguments:

(1)
The constitutional provision on people's initiative to amend the Constitution
can only be implemented by law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2)
It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in
1994: "There is not a single word in that law which can be considered as
implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3)
Republic Act No. 6735 provides for the effectivity of the law after publication
in print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4)
COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national
and local laws, is ultra vires insofar as initiative on amendments to the Constitution
is concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5)
The people's initiative is limited to amendments to the Constitution, not to
revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6)
Finally, Congress has not yet appropriated funds for people's initiative;
neither the COMELEC nor any other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the

people's initiative spearheaded by PIRMA would entail expenses to the national
treasury for general re-registration of voters amounting to at least P180 million, not
to mention the millions of additional pesos in expenses which would be incurred in
the conduct of the initiative itself. Hence, the transcendental importance to the
public and the nation of the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no
other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further
orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15 on the petition. They argue therein that:
1.
IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST
PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2.
NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT
IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF
THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3.
THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4.
REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO

THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5.
COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT
SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6.
EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF
THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7.
THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE
CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment
16 which starts off with an assertion that the instant petition is a "knee-jerk reaction
to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally
filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or
"Initiatory Petition," which was legally necessary to start the signature campaign to
amend the Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the petitioners,
Delfin maintains as follows:
(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
mentions initiative 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 rule-making 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 A revision 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 co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No.
2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signed by the required number of registered voters.

He also submits that the proponents of a constitutional amendment cannot avail of
the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the Constitution is
limited to the determination of the sufficiency of the initiative petition and the call
and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1)
Congress has failed to enact an enabling law mandated under Section 2,
Article XVII of the 1987 Constitution.
(2)
COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3)
The Petition for Initiative suffers from a fatal defect in that it does not have
the required number of signatures.
(4)
The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for

Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention;
and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:

1.
Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or cover
initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers such initiative.
2.
Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.
3.
Whether the lifting of term limits of elective national and local officials, as
proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4.
Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5.
Whether it is proper for the Supreme Court to take cognizance of the petition
when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator
Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of
action and that the Commission's failure or refusal to do so constituted grave abuse
of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of
House Bill No. 21505, as well as the transcripts of stenographic notes on the

proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments
on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The
parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this
special civil action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28.
The Comelec has no jurisdiction to take cognizance of the petition filed by
private respondent Delfin. This being so, it becomes imperative to stop the Comelec
from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a
petition for prohibition is the proper remedy.
29.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.

30.
In the final analysis, when the system of constitutional law is threatened by
the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss
the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority
to entertain the petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the
hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause
the publication of the petition, together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to
the petition rendered ripe and viable the instant petition under Section 2 of Rule 65
of the Rules of Court, which provides:
Sec. 2.
Petition for prohibition. Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial,
are without or in excess of its or his jurisdiction, or with grave abuse of discretion,
and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant to desist from further proceedings in the
action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by the
required minimum number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin
Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for
certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.
28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS

TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2.
Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
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.That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ.That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any event, as envisioned, no
amendment through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first amendment that
could be proposed through the exercise of this initiative power would be after five
years. It is reasonably expected that within that five-year period, the National
Assembly can come up with the appropriate rules governing the exercise of this
power.
FR. BERNAS. Since the matter is left to the legislature the details on how this is to
be carried out is it possible that, in effect, what will be presented to the people
for ratification is the work of the legislature rather than of the people? Does this
provision exclude that possibility?
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.

xxx
xxx
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?
MR. SUAREZ.That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy
of legal mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ.The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we
require a great deal of circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ.That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process
and the modes of amending the Constitution?
MR. SUAREZ.That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to
again concede to the legislature the process or the requirement of determining the
mechanics of amending the Constitution by people's initiative?
MR. SUAREZ.The matter of implementing this could very well be placed in the hands
of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND not to REVISE the Constitution; thus:
MR. SUAREZ.. . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year,
has to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on Amendment or Revision. 34
xxx
xxx
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of

initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?
MR. SUAREZ.We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand
into a revision which contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then

Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF

THE EXERCISE OF THIS RIGHT.
MR. SUAREZ.Madam President, considering that the proposed amendment is

reflective of the sense contained in Section 2 of our completed Committee Report
No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2

clearly showed that it was a legislative act which must implement the exercise of
the right. Thus:
MR. ROMULO.
Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx
xxx
xxx
MR. ROMULO.
But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. ROMULO.
But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO.
In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines
initiative to AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment

on line 1 refers to "amendment." 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." 38
Commissioner Davide further emphasized that the process of proposing

amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the National Assembly
is required, the import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary legislation or putting an
end to a law proposed by the National Assembly by way of a referendum. I cannot
agree to reducing the requirement approved by the Committee on the Legislative
because it would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might present such a
proposal, by way of an amendment, when the Commission shall take up the Article
on the Legislative or on the National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and

the final version, which the Commission approved by a vote of 31 in favor and 3
against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT
OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second

reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be

amended by changing "percent" to "per centum" and "thereof" to "therein" and
deleting the phrase "by law" in the second paragraph so that said paragraph reads:
The Congress 43 shall provide for the implementation of the exercise of this right.

44 This amendment was approved and is the text of the present second paragraph
of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this
right.
with
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 for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed law sought
to be enacted, approved or rejected, amended or repealed, as the case may be. It
does not include, as among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on the Constitution.
Said paragraph (c) reads in full as follows:
(c)
The petition shall state the following:
c.1
contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2
the proposition;
c.3
the reason or reasons therefor;
c.4
that it is not one of the exceptions provided therein;
c.5
signatures of the petitioners or registered voters; and
c.6
an abstract or summary proposition is not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the
petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on
national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy

of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national
and local laws.
We cannot accept the argument that the initiative on amendments to the

Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but
on its nature and character. It is "national initiative," if what is proposed to be
adopted or enacted is a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of the autonomous
regions, provinces, cities, municipalities, and barangays can pass. This classification
of initiative into national and local is actually based on Section 3 of the Act, which
we quote for emphasis and clearer understanding:
Sec. 3.
xxx
Definition of terms
xxx
xxx
There are three (3) systems of initiative, namely:
a.1
Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2
Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
a.3
Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).
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 proposition in an initiative on the Constitution approved by the majority
of the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.
(c)
A national or local initiative proposition approved by majority of the votes
cast in an election called for the purpose shall become effective fifteen (15) days
after certification and proclamation of the Commission. (Emphasis supplied).
(2)
that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:
Sec. 11.
Indirect Initiative. Any duly accredited people's organization, as
defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum,
which could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to
both national and local initiative and referendum. It reads:
Sec. 18.
Authority of Courts. Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body
to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and
local legislation thereby giving them special attention, it failed, rather intentionally,
to do so on the system of initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the following:
(a)
The required percentage of registered voters to sign the petition and the
contents of the petition;
(b)
The conduct and date of the initiative;
(c)
The submission to the electorate of the proposition and the required number
of votes for its approval;
(d)
The certification by the COMELEC of the approval of the proposition;
(e)
The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f)
The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a)
The preliminary requirement as to the number of signatures of registered
voters for the petition;
(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;
(f)
The persons before whom the petition shall be signed;
(g)
The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have
been obtained;
(h)
The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;
(i)
The issuance of a certification of the result;
(j)
The date of effectivity of the approved proposition;
(k)
The limitations on local initiative; and
(l)
The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it
in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the petition;
and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the

paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to
the system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions
to the rule are as follows:
(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).
The Temporary Restraining Order issued on 18 December 1996 is made permanent

as against the Commission on Elections, but is LIFTED as against private
respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr.,
JJ., concur.
Padilla, J., took no part.
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:
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
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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.
2.
While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers
between the Legislature and the Executive departments. Transcending changes in
the exercise of legislative power is the declaration in the Philippine Constitution that
the Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.
3.
Under the 1987 Constitution, the lawmaking power is still preserved in
Congress; however, to institutionalize direct action of the people as exemplified in
the 1986 Revolution, the Constitution recognizes the power of the people, through
the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill
on referendum and initiative, and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered
voters.
Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government Code
which vests in the barangay assembly the power to initiate legislative processes,
decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all

of which are variations of the power of initiative and referendum. He added that the
holding of barangay plebiscites and referendum are likewise provided in Sections
100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained in

the instant Bill among which are the constitutions of states in the United States
which recognize the right of registered voters to initiate the enactment of any
statute or to project any existing law or parts thereof in a referendum. These states,
he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon,
and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which
initiative and referendum apply is also without limitation, except for emergency
measures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirements of
a certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he
said, is a tried and tested system in other jurisdictions, and the Bill is patterned
after American experience.
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
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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.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were
threshed out in a Bicameral Conference Committee. 8 In the meeting of the
Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be
consolidated and that the consolidated version should include people's initiative to
amend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
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CHAIRMAN GONZALES.
But at any rate, as I have said, because this is new in our
political system, the Senate decided on a more cautious approach and limiting it
only to the local government units because even with that stage where . . . at least
this has been quite popular, ano? It has been attempted on a national basis. Alright.

There has not been a single attempt. Now, so, kami limitado doon. And, second, we
consider also that it is only fair that the local legislative body should be given a
chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect
system of initiative. If after all, the local legislative assembly or body is willing to
adopt it in full or in toto, there ought to be any reason for initiative, ano for
initiative. And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people, thru initiative,
cannot enact any ordinance that is beyond the scope of authority of the local
legislative body, otherwise, my God, mag-aassume sila ng power that is broader
and greater than the grant of legislative power to the Sanggunians. And Number 5,
because of that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and therefore that
should not deprive the court of its jurisdiction to declare it null and void for want of
authority. Ha, di ba? I mean it is beyond powers of local government units to enact.
Iyon ang main essence namin, so we concentrated on that. And that is why . . . so
ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh
. . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in
effect become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill.
Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills
approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na
nating pagusapan. Now, if you insist, really iyong features ng national at saka
constitutional, okay. ____ gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES.
10
Consolidation of the Senate and House Bill No. so and so.
When the consolidated bill was presented to the House for approval, then
Congressman Roco upon interpellation by Congressman Rodolfo Albano, again
confirmed that it covered people's initiative to amend the Constitution. The record
of the House Representative states: 11
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THE SPEAKER PRO TEMPORE.
The Gentleman from Camarines Sur is recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House Representatives correctly
provided for initiative and referendum on the Constitution and on national
legislation.
I move that we approve the consolidated bill.
MR. ALBANO.
Mr. Speaker.
MR. ALBANO.
What is the pleasure of the Minority Floor Leader?
Will the distinguished sponsor answer just a few questions?
The Gentlemen will please proceed.
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.
MR. ROCO. In fact, the Senate version provide purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.
MR. ALBANO.
incorporated?
MR. ROCO.
Is it our understanding therefore, that the two provisions were
Yes, Mr. Speaker.
MR. ALBANO.
So that we will now have a complete initiative and referendum
both in the constitutional amendment and national legislation.

MR. ROCO.
That is correct.
MR. ALBANO.
MR. ROCO.
And provincial as well as municipal resolutions?
Down to barangay, Mr. Speaker.
MR. ALBANO.
And this initiative and referendum is in consonance with the
provision of the Constitution whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which can be done every five years. Is
it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO.
MR. ROCO.
For every five years, Mr. Speaker?
Within five years, we cannot have multiple initiatives and referenda.
MR. ALBANO.
Therefore, basically, there was no substantial difference
between the two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.
MR. ALBANO.
MR. ROCO.
And the two bills were consolidated?
Yes, Mr. Speaker.
MR. ALBANO.
Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505

(The Initiative and Referendum Act)

There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's
initiative to amend the Constitution, it is our bounden duty to interpret the law as it
was intended by the legislature. We have ruled that once intent is ascertained, it
must be enforced even if it may not be consistent with the strict letter of the law
and this ruling is as old as the mountain. We have also held that where a law is
susceptible of more than one interpretation, that interpretation which will most tend
to effectuate the manifest intent of the legislature will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its
intent to implement the people's initiative to amend the Constitution. To be sure, we
need not torture the text of said law to reach the conclusion that it implements
people's initiative to amend the Constitution. R.A. No. 6735 is replete with
references to this prerogative of the people.
First, the policy statement declares:
Sec. 2.
Statement of Policy. The power of the people under a system of
recognized and guaranteed. (emphasis supplied)
Second, the law 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," and "plebiscite" as "the electoral process by which
an initiative on the Constitution is approved or rejected by the people.
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 three per 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:
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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 separation of powers, that said law: (a) be
complete in itself it must set forth therein the policy to be executed, carried out
or implemented by the delegate and (b) to fix standard the limits of which are
sufficiently determinate or determinable to which the delegate must conform in
the performance of his functions. Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also and this is
worse to unmake it, by adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very
foundation of our republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC
in promulgating the law's implementing rules and regulations of the law. As

aforestated, section 2 spells out the policy of the law; viz: "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." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and
regulations from overflowing. Thus, the law states the number of signatures
necessary to start a people's initiative, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for
initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22
when the amendment takes effect 23 and what matters may not be the subject of
any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is
intended to map out the boundaries of the delegates' authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued
and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power
to enact the law implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided the procedure to
effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend
the Constitution. The debates 26 in the Constitutional Commission make it clear
that the rules of procedure to enforce the people's initiative can be delegated, thus:
MR. ROMULO.
Under Commissioner Davide's amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
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MR. ROMULO.


MR. ROMULO.
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise
affirmed: "In response to questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it could for instance,
prescribe the 'proper form before (the amendment) is submitted to the people,' it
could authorize another body to check the proper form. It could also authorize the
COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: 'As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.'" Quite clearly, the prohibition against
the legislature is to impair the substantive right of the people to initiate
amendments to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to another body
like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from
invalidating administrative rules on the ground of lack of adequate legislative
standard to guide their promulgation. As aptly perceived by former Justice Cruz,
"even if the law itself does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29
viz:
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It is true that the Act does not in terms establish a particular standard to which
orders of the military commander are to conform, or require findings to be made as
a prerequisite to any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They were parts of a single
program and must be judged as such. The Act of March 21, 1942, was an adoption
by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order the necessity

of protecting military resources in the designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A
20-20 look at the law cannot miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found in no less than section 2,
Article XVII of the Constitution on Amendments or Revisions. There is thus no reason
to hold that the standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as "simplicity and
dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33
"justice and equity," 34 "adequate and efficient instruction," 35 "public safety," 36
"public policy", 37 "greater national interest", 38 "protect the local consumer by
stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the
legislature, a co-equal 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 decisionmaking 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." 43 Just 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.
Melo and Mendoza, JJ., concur.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to
engross, let alone to commit, itself on all the issues raised and debated upon by the
parties. What is essential at this time would only be to resolve whether or not the
petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a
"founding member of the Movement for People's Initiative" and seeking through a
people initiative certain modifications on the 1987 Constitution, can properly be
regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof provides:
Sec. 2.
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 the ponencia 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 non-binding, 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.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared a
scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his
view that R. A. No. 6735 is inadequate to cover the system of initiative on
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions, the
present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well. 2 To implement these
constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise
known as "The initiative and Referendum Act". This law, to my mind, amply covers
an initiative on the constitution. The contrary view maintained by petitioners is
based principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3
which allegation manifests petitioners' selective interpretation of the law, for under
Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing that:
The 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 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". 6 The 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:
A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the 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 years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to provide
for the implementation of the right to propose an amendment to the Constitution by
way of initiative. "A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly, meaningless, in the sense
of adding nothing to the law or having no effect whatsoever thereon". 8 That this is
the legislative intent is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference

Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers
to the system providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so both versions are
totally intact in the bill. The Senators ironically provided for local initiative and

referendum and the House of Representatives correctly provided for initiative and
referendum an the Constitution and on national legislation.
MR. ALBANO, Mr. Speaker.
MR. ALBANO.
MR. ROCO.
What does the sponsor say?
Willingly, Mr. Speaker.
The Gentleman will please proceed.
MR. ALBANO.
MR. ROCO. In fact, the Senate version provided purely for local initiative and
MR. ALBANO.
incorporated?
MR. ROCO.
Is it our understanding, therefore, that the two provisions were
Yes, Mr. Speaker.
MR. ALBANO.
MR. ROCO.
That is correct.
MR. ALBANO.
MR. ROCO.
MR. ALBANO.
provision of the Constitution to enact the enabling law, so that we shall have a
system which can be done every five years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the
1987 Constitution, it is every five years." (Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any
other construction as what petitioners foist upon the Court constitute a betrayal of
the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at present,
cannot take any action (such as those contained in the Commission's orders dated
December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having
already assumed jurisdiction over private respondents' petition. This is so because
from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of
procurement of the required percentage of registered voters at the time the petition
for initiative is filed, is a jurisdictional requirement.
Thus:

centum (12%) of the total number of registered voters as signatories, of which
the registered voters therein. Initiative on the Constitution may be exercised only
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.
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:
Sec. 2.
With all due respect, I find the majority's position all too sweeping and all too
extremist. It is equivalent to burning the whole house to exterminate the rats, and
to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec
to do we should reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact that the Delfin
Petition proposes a misuse of initiative does not justify a ban against its proper use.
Indeed, there is a right way to do the right thing at the right time and for the right
reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly concedes
intended by the legislature to cover and, I respectfully submit, it contains enough
provisions to effectuate an initiative on the Constitution. 1 I completely agree with
the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice
Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs.
Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally
construed to effectuate their purposes, to facilitate and not hamper the exercise by
the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recognition
of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate
such rules and regulations as may be necessary to carry out the purposes of this
Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January
1991. Such Resolution, by its very words, was promulgated "to govern the conduct
of initiative on the Constitution and initiative and referendum on national and local
laws," not by the incumbent Commission on Elections but by one then composed of
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa,
Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from the Commission, and
thus we cannot ascribe any vile motive unto them, other than an honest, sincere
and exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national laws
and local legislations, it is void in reference to constitutional amendments. There is
no basis for such differentiation. The source of and authority for the Resolution is
the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and realize our
people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

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 Filipino
constitutional system. All three are institutionalized legacies of the world-admired
EDSA people power. Like elections and plebiscites, they are hallowed expressions of
popular sovereignty. They are sacred democratic rights of our people to be used as
their final weapons against political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand,
their misuse and abuse must be resolutely struck down, on the other, their
legitimate exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority. I
also vote to LIFT the temporary restraining order issued on 18 December 1996
insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from
exercising their right to free speech in proposing amendments to the Constitution.
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:
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
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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.
2.
While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers
between the Legislature and the Executive departments. Transcending changes in
the exercise of legislative power is the declaration in the Philippine Constitution that
the Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.
3.
Under the 1987 Constitution, the lawmaking power is still preserved in
Congress; however, to institutionalize direct action of the people as exemplified in
the 1986 Revolution, the Constitution recognizes the power of the people, through
the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill
on referendum and initiative, and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered
voters.
Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government Code
which vests in the barangay assembly the power to initiate legislative processes,
decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all
of which are variations of the power of initiative and referendum. He added that the
holding of barangay plebiscites and referendum are likewise provided in Sections
100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained in

the instant Bill among which are the constitutions of states in the United States
which recognize the right of registered voters to initiate the enactment of any
statute or to project any existing law or parts thereof in a referendum. These states,
he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon,
Mr. Roco explained that in certain American states, the kind of laws to which
initiative and referendum apply is also without limitation, except for emergency
measures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirements of
a certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he
said, is a tried and tested system in other jurisdictions, and the Bill is patterned
after American experience.
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
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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.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were
threshed out in a Bicameral Conference Committee. 8 In the meeting of the
Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be
consolidated and that the consolidated version should include people's initiative to
amend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
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CHAIRMAN GONZALES.
But at any rate, as I have said, because this is new in our
political system, the Senate decided on a more cautious approach and limiting it
only to the local government units because even with that stage where . . . at least
this has been quite popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon. And, second, we
consider also that it is only fair that the local legislative body should be given a
chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect
system of initiative. If after all, the local legislative assembly or body is willing to
adopt it in full or in toto, there ought to be any reason for initiative, ano for

initiative. And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people, thru initiative,
cannot enact any ordinance that is beyond the scope of authority of the local
legislative body, otherwise, my God, mag-aassume sila ng power that is broader
and greater than the grant of legislative power to the Sanggunians. And Number 5,
because of that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and therefore that
should not deprive the court of its jurisdiction to declare it null and void for want of
authority. Ha, di ba? I mean it is beyond powers of local government units to enact.
Iyon ang main essence namin, so we concentrated on that. And that is why . . . so
ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh
. . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in
effect become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill.
Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills
approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na
nating pagusapan. Now, if you insist, really iyong features ng national at saka
constitutional, okay. ____ gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES.
10
Consolidation of the Senate and House Bill No. so and so.
When the consolidated bill was presented to the House for approval, then
Congressman Roco upon interpellation by Congressman Rodolfo Albano, again
confirmed that it covered people's initiative to amend the Constitution. The record
of the House Representative states: 11
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The Gentleman from Camarines Sur is recognized.

between Senate Bill No. 21505 which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House Representatives correctly

provided for initiative and referendum on the Constitution and on national
legislation.
MR. ALBANO.
Mr. Speaker.
MR. ALBANO.
The Gentlemen will please proceed.
MR. ALBANO.
MR. ROCO. In fact, the Senate version provide purely for local initiative and
MR. ALBANO.
incorporated?
MR. ROCO.
Is it our understanding therefore, that the two provisions were
Yes, Mr. Speaker.
MR. ALBANO.
MR. ROCO.
That is correct.
MR. ALBANO.
MR. ROCO.
MR. ALBANO.
provision of the Constitution whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which can be done every five years. Is
it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO.
MR. ROCO.
For every five years, Mr. Speaker?
Within five years, we cannot have multiple initiatives and referenda.
MR. ALBANO.
Therefore, basically, there was no substantial difference
between the two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.
MR. ALBANO.
MR. ROCO.
And the two bills were consolidated?
Yes, Mr. Speaker.
MR. ALBANO.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's
initiative to amend the Constitution, it is our bounden duty to interpret the law as it
was intended by the legislature. We have ruled that once intent is ascertained, it
must be enforced even if it may not be consistent with the strict letter of the law
and this ruling is as old as the mountain. We have also held that where a law is
susceptible of more than one interpretation, that interpretation which will most tend
to effectuate the manifest intent of the legislature will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its
intent to implement the people's initiative to amend the Constitution. To be sure, we
need not torture the text of said law to reach the conclusion that it implements
people's initiative to amend the Constitution. R.A. No. 6735 is replete with
references to this prerogative of the people.
First, the policy statement declares:
Sec. 2.
Statement of Policy. The power of the people under a system of
recognized and guaranteed. (emphasis supplied)
Second, the law 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," and "plebiscite" as "the electoral process by which
an initiative on the Constitution is approved or rejected by the people.
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 three per 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
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
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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 separation of powers, that said law: (a) be
complete in itself it must set forth therein the policy to be executed, carried out
or implemented by the delegate and (b) to fix standard the limits of which are
sufficiently determinate or determinable to which the delegate must conform in
the performance of his functions. Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also and this is
worse to unmake it, by adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very
foundation of our republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to.
aforestated, section 2 spells out the policy of the law; viz: "The power of the people

necessary to start a people's initiative, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for
initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22
when the amendment takes effect 23 and what matters may not be the subject of
any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is
intended to map out the boundaries of the delegates' authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued
and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power
to enact the law implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided the procedure to
effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend
the Constitution. The debates 26 in the Constitutional Commission make it clear
that the rules of procedure to enforce the people's initiative can be delegated, thus:
MR. ROMULO.
Under Commissioner Davide's amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx
xxx
xxx
MR. ROMULO.


MR. ROMULO.
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise
affirmed: "In response to questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it could for instance,
prescribe the 'proper form before (the amendment) is submitted to the people,' it
could authorize another body to check the proper form. It could also authorize the
COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: 'As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.'" Quite clearly, the prohibition against
the legislature is to impair the substantive right of the people to initiate
amendments to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to another body
like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from
invalidating administrative rules on the ground of lack of adequate legislative
standard to guide their promulgation. As aptly perceived by former Justice Cruz,
"even if the law itself does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29
viz:
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xxx
xxx
It is true that the Act does not in terms establish a particular standard to which
orders of the military commander are to conform, or require findings to be made as
a prerequisite to any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They were parts of a single
program and must be judged as such. The Act of March 21, 1942, was an adoption
by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order the necessity

of protecting military resources in the designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A
20-20 look at the law cannot miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found in no less than section 2,
Article XVII of the Constitution on Amendments or Revisions. There is thus no reason
to hold that the standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as "simplicity and
dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33
"justice and equity," 34 "adequate and efficient instruction," 35 "public safety," 36
"public policy", 37 "greater national interest", 38 "protect the local consumer by
stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the
legislature, a co-equal 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 decisionmaking 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." 43 Just 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.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to
engross, let alone to commit, itself on all the issues raised and debated upon by the
parties. What is essential at this time would only be to resolve whether or not the
petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a
"founding member of the Movement for People's Initiative" and seeking through a
people initiative certain modifications on the 1987 Constitution, can properly be
regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof provides:

Sec. 2.
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 the ponencia 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 non-binding, 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.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared a
scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his
view that R. A. No. 6735 is inadequate to cover the system of initiative on
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions, the
present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well. 2 To implement these
constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise
known as "The initiative and Referendum Act". This law, to my mind, amply covers
an initiative on the constitution. The contrary view maintained by petitioners is
based principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3
which allegation manifests petitioners' selective interpretation of the law, for under
Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing that:
The 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 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". 6 The 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:
centum (12%) of the total number of the registered voters as signatories, of which
the registered voters therein. Initiative on the constitution may be exercised only
every five years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to provide
for the implementation of the right to propose an amendment to the Constitution by
way of initiative. "A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly, meaningless, in the sense
of adding nothing to the law or having no effect whatsoever thereon". 8 That this is
the legislative intent is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference

Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers
to the system providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so both versions are
totally intact in the bill. The Senators ironically provided for local initiative and
referendum and the House of Representatives correctly provided for initiative and
referendum an the Constitution and on national legislation.

MR. ALBANO, Mr. Speaker.
MR. ALBANO.
MR. ROCO.
What does the sponsor say?
Willingly, Mr. Speaker.
The Gentleman will please proceed.
MR. ALBANO.
MR. ROCO. In fact, the Senate version provided purely for local initiative and
MR. ALBANO.
incorporated?
MR. ROCO.
Is it our understanding, therefore, that the two provisions were
Yes, Mr. Speaker.
MR. ALBANO.
MR. ROCO.
That is correct.

MR. ALBANO.
MR. ROCO.
MR. ALBANO.
provision of the Constitution to enact the enabling law, so that we shall have a
system which can be done every five years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the
1987 Constitution, it is every five years." (Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any
other construction as what petitioners foist upon the Court constitute a betrayal of
the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at present,
cannot take any action (such as those contained in the Commission's orders dated
December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having
already assumed jurisdiction over private respondents' petition. This is so because
from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of
procurement of the required percentage of registered voters at the time the petition
for initiative is filed, is a jurisdictional requirement.
Thus:
centum (12%) of the total number of registered voters as signatories, of which

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.
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
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
Under the above restrictive holdings espoused by the Court's majority, the
not by Pirma, not by anyone, not even by all the voters of the country acting
Sec. 2.
With all due respect, I find the majority's position all too sweeping and all too
reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly concedes
intended by the legislature to cover and, I respectfully submit, it contains enough

provisions to effectuate an initiative on the Constitution. 1 I completely agree with
the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice
Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs.
Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally
construed to effectuate their purposes, to facilitate and not hamper the exercise by
the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recognition
of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate
such rules and regulations as may be necessary to carry out the purposes of this
Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January
1991. Such Resolution, by its very words, was promulgated "to govern the conduct
of initiative on the Constitution and initiative and referendum on national and local
laws," not by the incumbent Commission on Elections but by one then composed of
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa,
Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from the Commission, and
thus we cannot ascribe any vile motive unto them, other than an honest, sincere
and exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national laws
the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300

I am glad the majority decided to heed our plea to lift the temporary restraining

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.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
exercising their right to free speech in proposing amendments to the Constitution.
19. LAMBINO V. COMELEC

G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952

REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO
represented by its Secretary General Joel Maglunsod, HEAD represented by its
Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM
represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General
Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina
Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF
FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA
of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO
of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of
Health Action for Human Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROSBARAQUEL, Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA,

TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS,
JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.

VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR.,

Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS,
Intervenors.
x --------------------------------------------------------x

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.
OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299
October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG,
Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO
A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition
to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section
5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters,
with each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group
prayed that after due publication of their petition, the COMELEC should submit the
following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.

Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of
certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006
and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion in
denying due course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the parties to that
case, and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited in
contempt for the COMELEC's verification of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction in Santiago. The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes
with the petitioners, urging the Court to grant the petition despite the Santiago
ruling. The Solicitor General proposed that the Court treat RA 6735 and its
implementing rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or

opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold
the view that the COMELEC committed grave abuse of discretion in relying on
Santiago. On the other hand, the opposing intervenors11 hold the contrary view and
maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of
the signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters supporting
an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the
nature of the proposed changes as revisions and not mere amendments as provided
under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's
compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties' memoranda, the Court considered the case
submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a people's
initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to implement
the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due

course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group's glaring failure to comply with the basic requirements of the
Constitution. For following the Court's ruling in Santiago, no grave abuse of
discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision

that allows a people's initiative to propose amendments to the Constitution. This
section states:

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

an amendment "directly proposed by the people through initiative upon a petition,"
thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them
and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them." The framers also "envisioned" that the people
should sign on the proposal itself because the proponents must "prepare that
proposal and pass it around for signature."

The essence of amendments "directly proposed by the people through initiative
upon a petition" is that the entire proposal on its face is a petition by the people.
This means two essential elements must be present. First, the people must author
and thus sign the entire proposal. No agent or representative can sign on their
behalf. Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition that
contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of
signatories to the petition had seen the full text of the proposed amendments
before signing. Otherwise, it is physically impossible, given the time constraint, to
prove that every one of the millions of signatories had seen the full text of the
proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's

initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States15 which allow initiative petitions, the
unbending requirement is that the people must first see the full text of the proposed
amendments before they sign to signify their assent, and that the people must sign
on an initiative petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:
[A] signature requirement would be meaningless if the person supplying the

signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents of
an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not
be to the signer's liking. This danger seems particularly acute when, in this case,

the person giving the description is the drafter of the petition, who obviously has a
vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative

commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of
full text of amended constitutional provision required because it is "essential for the
elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature
and effect of that which is proposed" and failure to do so is "deceptive and
misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. However, the deliberations
of the framers of our Constitution clearly show that the framers intended to adopt
the relevant American jurisprudence on people's initiative. In particular, the
deliberations of the Constitutional Commission explicitly reveal that the framers
intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full
text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum
Act that the Lambino Group invokes as valid, requires that the people must sign the
"petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public officials.
The proponents are not disinterested parties who can impartially explain the
advantages and disadvantages of the proposed amendments to the people. The
proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay
those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional

requirements in gathering the signatures. The proponents bear the burden of

proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full text
of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of
the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet20 after the oral arguments of 26
September 2006 when they filed their Memorandum on 11 October 2006. The
signature sheet with this Court during the oral arguments was the signature sheet
attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce below
the signature sheet in full:
Province:
City/Municipality:
No. of
Verified
Signatures:
Legislative District:
Barangay:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF

THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature

herein which shall form part of the petition for initiative to amend the Constitution
signifies my support for the filing thereof.
Precinct Number
Name
Last Name, First Name, M.I.
Address
Birthdate
MM/DD/YY
Signature
Verification
1 .. 10
_________________

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

from February to August 2006, the Lambino Group circulated, together with the
signature sheets, printed copies of the Lambino Group's draft petition which they
later filed on 25 August 2006 with the COMELEC. When asked if his group also
circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty.
Lambino changed his answer and stated that what his group circulated was the
draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006
petition.
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner Erico B. Aumentado's

"Verification/Certification" of the 25 August 2006 petition, as well as of the 30
August 2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal

capacity as a registered voter, for and on behalf of the Union of Local Authorities of
the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the "Official Website of the Union of Local Authorities of
the Philippines"22 has posted the full text of Resolution No. 2006-02, which
provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE

COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines
(ULAP) to adopt a common stand on the approach to support the proposals of the
People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the
ULAP Joint Declaration for Constitutional Reforms signed by the members of the
ULAP and the majority coalition of the House of Representatives in Manila Hotel
sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her

Excellency to recommend amendments to the 1987 Constitution has submitted its
final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress

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

WHEREAS, subject to the ratification of its institutional members and the failure of
Congress to amend the Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue the
same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBERLEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP)
SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare
the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the
COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory
Provisions. The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the
Lambino Group's proposed changes do not touch. The Lambino Group's proposed
changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does
not establish that ULAP or the Lambino Group caused the circulation of the draft
petition, together with the signature sheets, six months before the filing with the
COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and
paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and
failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because
the amended petition was what they had shown to the people during the February
to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their
proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of the
draft petition together with the signature sheets. Likewise, the Lambino Group did
not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature sheets
do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the

Lambino Group first claimed that they circulated the "petition for initiative filed with
the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of the
act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the
registered voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not

contain the text of the proposed changes. In their Consolidated Reply, the Lambino
Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the
oral arguments that what they circulated was the draft of the amended petition of
30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a referendum petition cannot question
his signature on the ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition
itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be

incorporated with, or attached to, the initiative petition signed by the people. In the
present initiative, the Lambino Group's proposed changes were not incorporated
with, or attached to, the signature sheets. The Lambino Group's citation of Corpus
Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the
petition or amended petition they filed later with the COMELEC. The Lambino Group
are less than candid with this Court in their belated claim that they printed and
circulated, together with the signature sheets, the petition or amended petition.
Nevertheless, even assuming the Lambino Group circulated the amended petition
during the signature-gathering period, the Lambino Group admitted circulating only
very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print
additional copies of the draft petition but he could not state with certainty how
many additional copies the other supporters printed. Atty. Lambino could only
assure this Court of the printing of 100,000 copies because he himself caused the
printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the

Lambino Group expressly admits that "petitioner Lambino initiated the printing and
reproduction of 100,000 copies of the petition for initiative x x x."25 This admission

binds the Lambino Group and establishes beyond any doubt that the Lambino Group
failed to show the full text of the proposed changes to the great majority of the
people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received
with certainty one copy each of the petition, assuming a 100 percent distribution
with no wastage. If Atty. Lambino and company attached one copy of the petition to
each signature sheet, only 100,000 signature sheets could have circulated with the
petition. Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the attached petition,
the maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible
for all or a great majority of the 6.3 million signatories to have seen the petition
before they signed the signature sheets. The inescapable conclusion is that the
Lambino Group failed to show to the 6.3 million signatories the full text of the
proposed changes. If ever, not more than one million signatories saw the petition
before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment
with an indication in the signature sheet of such attachment. Petitioner Atty.
Lambino admitted this during the oral arguments, and this admission binds the
Lambino Group. This fact is also obvious from a mere reading of the signature sheet.
This omission is fatal. The failure to so include the text of the proposed changes in
the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the
people through initiative upon a petition." The signature sheet is not the "petition"
envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature
sheets did not see the full text of the proposed changes before signing. They could
not have known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members,
who are almost all the present members of Congress, decide to call for new

parliamentary elections. Thus, the members of the interim Parliament will determine
the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea
that they were proposing these amendments. These three proposed changes are
highly controversial. The people could not have inferred or divined these proposed
changes merely from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group
assured the people during the signature-gathering that the elections for the regular
Parliament would be held during the 2007 local elections if the proposed changes
were ratified before the 2007 local elections. However, the text of the proposed
changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election
of all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of all
local government officials." This would have insured that the elections for the
regular Parliament would be held in the next local elections following the ratification
of the proposed changes. However, the absence of the word "next" allows the
interim Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own
term of office. This allows incumbent members of the House of Representatives to
hold office beyond their current three-year term of office, and possibly even beyond
the five-year term of office of regular members of the Parliament. Certainly, this is
contrary to the representations of Atty. Lambino and his group to the 6.3 million
people who signed the signature sheets. Atty. Lambino and his group deceived the
6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million signatories had to rely on
the verbal representations of Atty. Lambino and his group because the signature
sheets did not contain the full text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led to believe that the proposed
changes would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to
make further amendments or revisions to the Constitution. The proposed Section
4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage"
and the Court and the people should simply ignore it. Far from being a surplusage,
this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the BicameralPresidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma
since they can answer only either yes or no to the entire proposition, forcing them
to sign a petition that effectively contains two propositions, one of which they may
find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29
the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if

our judicial responsibility is to mean anything, we cannot permit. The very
broadness of the proposed amendment amounts to logrolling because the
electorate cannot know what it is voting on - the amendment's proponents'
simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must
give the electorate fair notice of the proposed amendment being voted on. x x x x
The ballot language in the instant case fails to do that. The very broadness of the
proposal makes it impossible to state what it will affect and effect and violates the
requirement that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30
the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in
logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that
the single-subject rule was enacted to prevent are exacerbated. There is a greater
danger of logrolling, or the deliberate intermingling of issues to increase the
likelihood of an initiative's passage, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties clearly distinguish the initiative
from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could not have
known that their signatures would be used to propose an amendment mandating
the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from
ratification of the proposed changes, or before the May 2007 elections. In the
absence of the proposed Section 4(4), the interim Parliament has the discretion
whether to amend or revise again the Constitution. With the proposed Section 4(4),
the initiative proponents want the interim Parliament mandated to immediately
amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending
or revising again so soon the Constitution. The signature sheets do not also explain
what specific amendments or revisions the initiative proponents want the interim
Parliament to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the proposed
changes.
There is another intriguing provision inserted in the Lambino Group's amended

petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions
states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will all
end on 30 June 2007, three years earlier than that of half of the present Senators.
Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister
will come only from the present members of the House of Representatives to the
exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The
6.3 million people who signed the signature sheets could not have known that their

signatures would be used to discriminate against the Senators. They could not have
known that their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and can
operate as a gigantic fraud on the people. That is why the Constitution requires that
an initiative must be "directly proposed by the people x x x in a petition" - meaning
that the people must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental law, the
writing of the text of the proposed amendments cannot be hidden from the people
under a general or special power of attorney to unnamed, faceless, and unelected
individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the members
of this Court do not personally know the people who sign the petition. However, this
trust emanates from a fundamental assumption: the full text of the proposed
amendment is first shown to the people before they sign the petition, not after they
have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it

dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing

Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the

Constitution and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the Constitution. Article
XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.

people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution.
The first mode is through Congress upon three-fourths vote of all its Members. The
second mode is through a constitutional convention. The third mode is through a
people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article
XVII, referring to the third mode, applies only to "[A]mendments to this
Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I quote Section 2:
This completes the blanks appearing in the original Committee Report No. 7. This
proposal was suggested on the theory that this matter of initiative, which came
about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1.

The committee members felt that this system of initiative should be limited to
amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a

separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section as if it were a
self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this
MS. AQUINO: In other words, the Committee was attempting to distinguish the
whereas, the process of initiation to amend, which is given to the public, would only
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment

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

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
"amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between "amendment" and "revision" of the Constitution.
The framers intended, and wrote, that only Congress or a constitutional convention
may propose revisions to the Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the Constitution. Where the
intent and language of the Constitution clearly withhold from the people the power
to propose revisions to the Constitution, the people cannot propose revisions even
as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States.
Thus, in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x

applies only to the proposing and the adopting or rejecting of 'laws and
amendments to the Constitution' and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution may be
accomplished only through ratification by the people of a revised constitution
proposed by a convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention, and the writ sought by petitioner
should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may
be amended or revised, it can be altered by those who favor amendments, revision,
or other change only through the use of one of the specified means. The
constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question
that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the revision

of the constitution drafted by the 'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption,
x x x.
While differing from that document in material respects, the measure sponsored by
the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x
x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be

submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x
xxx
Similarly, in this jurisdiction there can be no dispute that a people's initiative can
only propose amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the constitutionally
prescribed modes of revising the Constitution. A popular clamor, even one backed
by 6.3 million signatures, cannot justify a deviation from the specific modes
prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in

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

This Court, whose members are sworn to defend and protect the Constitution,
cannot shirk from its solemn oath and duty to insure compliance with the clear
command of the Constitution that a people's initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision,
then the present petition should be dismissed for being outside the scope of Section
2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described
the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding

nature, and the provisions contained therein for its revision indicate the will of the
people that the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature. On the
other hand, the significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an improvement, or
better carry out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system of checks-andbalances. There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the constitution.
On the other hand, amendment broadly refers to a change that adds, reduces, or
deletes without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the
proposed change is "so extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or alteration of numerous
existing provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.

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

the three great co-equal branches of government in the present Constitution are
reduced into two. This alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a Unicameral-Parliamentary
system is a revision of the Constitution. Merging the legislative and executive
branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power
alters the separation of powers and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress alters the system of
checks-and-balances within the legislature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to
a Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a revision,
not a mere amendment. On the face alone of the Lambino Group's proposed
changes, it is readily apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable

provisions. The guiding original intention of an amendment is to improve specific

parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch from the
presidential system to a parliamentary system would be a revision because of its
over-all impact on the entire constitutional structure. So would a switch from a
bicameral system to a unicameral system be because of its effect on other
important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida

State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the]
proposed amendment would x x x affect several other provisions of [the]
Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions of the
Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of
the states of the nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on
government.
xxxx
We conclude with the observation that if such proposed amendment were adopted
by the people at the General Election and if the Legislature at its next session
should fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of
appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme
Court and Circuit Courts-and there could be other examples too numerous to detail.
These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and
many sessions of the Legislature in bringing about the Constitution of 1968 was to
eliminate inconsistencies and conflicts and to give the State a workable, accordant,
homogenous and up-to-date document. All of this could disappear very quickly if we
were to hold that it could be amended in the manner proposed in the initiative
petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida

Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo J.
Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far
more radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group posits that
when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative
body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are
made by ordinary people who do not make an "occupation, profession, or vocation"
out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly
provide for both "amendment" and "revision" when it speaks of legislators and
constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words

"revision" and "amendment" pertain only to the process or procedure of coming up
with the corrections, for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in
the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention

had drafted the same proposed changes that the Lambino Group wrote in the
present initiative, the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in the present initiative
constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the
land.
The express intent of the framers and the plain language of the Constitution
contradict the Lambino Group's theory. Where the intent of the framers and the
language of the Constitution are clear and plainly stated, courts do not deviate from
such categorical intent and language.45 Any theory espousing a construction
contrary to such intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring
and inviting inconsistencies in the Constitution, only exposes the flimsiness of the
Lambino Group's position. Any theory advocating that a proposed change involving
a radical structural change in government does not constitute a revision justly
deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46
the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative. His theory is that Article XVII, section 2 merely
provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to
the constitution that cannot be enacted through the initiative process. They assert

that the distinction between amendment and revision is determined by reviewing
the scope and subject matter of the proposed enactment, and that revisions are not
limited to "a formal overhauling of the constitution." They argue that this ballot
measure proposes far reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and radical restructuring
of the government's relationship with a defined group of citizens. Plaintiffs assert
that, because the proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior approval of the
legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit
revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court
concluded that a revision of the constitution may not be accomplished by initiative,
because of the provisions of Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the
initiative as a means of amending the Oregon Constitution, but it contains no similar
sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only
section of the constitution which provides the means for constitutional revision and
it excludes the idea that an individual, through the initiative, may place such a
measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply
to constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the
express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end
of the red spectrum where revision begins. The present initiative seeks a radical
overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several sections
and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be
considered an amendment and not a revision. For example, a change reducing the
voting age from 18 years to 15 years47 is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass media companies from 100
percent to 60 percent is an amendment and not a revision.48 Also, a change
requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles
of the Constitution other than the specific provision being amended. These changes
do not also affect the structure of government or the system of checks-andbalances among or within the three branches. These three examples are located at
the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a

revision. A change in a single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the substitution of the word
"republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the
Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a

constitution, a deliberative body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not only several provisions,
but also the altered principles with those that remain unaltered. Thus, constitutions
normally authorize deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:

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

inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Group's draft of Section 2 of
the Transitory Provisions turns on its head this rule of construction by stating that in
case of such irreconcilable inconsistency, the earlier provision "shall be amended to
conform with a unicameral parliamentary form of government." The effect is to
freeze the two irreconcilable provisions until the earlier one "shall be amended,"
which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino
readily conceded during the oral arguments that the requirement of a future
amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of
statutory construction so that the later provision automatically prevails in case of
irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the

Transitory Provisions is not between a provision in Article VI of the 1987 Constitution
and a provision in the proposed changes. The inconsistency is between a provision
in Article VI of the 1987 Constitution and the "Parliamentary system of
government," and the inconsistency shall be resolved in favor of a "unicameral
parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's

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

This drives home the point that the people's initiative is not meant for revisions of
the Constitution but only for amendments. A shift from the present BicameralPresidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution. Revision of the Constitution through
a people's initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a

revision and not an amendment. Thus, the present initiative is void and
unconstitutional because it violates Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and scope
of a people's initiative to amend the Constitution. There is no need to revisit this
Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to cover the system of initiative to amend the
Constitution. An affirmation or reversal of Santiago will not change the outcome of
the present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of the
Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if
the case before the Court can be resolved on some other grounds. Such avoidance
is a logical consequence of the well-settled doctrine that courts will not pass upon
the constitutionality of a statute if the case can be resolved on some other
grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional

provision on initiatives to amend the Constitution, this will not change the result
here because the present petition violates Section 2, Article XVII of the Constitution.
To be a valid initiative, the present initiative must first comply with Section 2, Article
XVII of the Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that
the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b)
of RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with"
the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC
did not even comply with the basic requirement of RA 6735 that the Lambino Group
claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, "No petition embracing more than one (1) subject shall be submitted to the
electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating
the interim Parliament to propose further amendments or revisions to the
Constitution, is a subject matter totally unrelated to the shift in the form of
government. Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even
if RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate its
unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could
be attributed to the public respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the Constitution
by cavalierly amending or revising it in blatant violation of the clearly specified
modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and unconstitutional
fashion. A revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total

votes cast53 approved our Constitution in a national plebiscite held on 11
February 1987. That approval is the unmistakable voice of the people, the full
expression of the people's sovereign will. That approval included the prescribed
modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they ratified the Constitution.
The alternative is an extra-constitutional change, which means subverting the
people's sovereign will and discarding the Constitution. This is one act the Court
cannot and should never do. As the ultimate guardian of the Constitution, this Court
is sworn to perform its solemn duty to defend and protect the Constitution, which
embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution the people's fundamental
covenant that provides enduring stability to our society becomes easily
susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that "ULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms." The Lambino Group thus admits that their "people's"

initiative is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of
"people's voice" or "sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution.
The Constitution, which embodies the people's sovereign will, is the bible of this
Court. This Court exists to defend and protect the Constitution. To allow this
constitutionally infirm initiative, propelled by deceptively gathered signatures, to
alter basic principles in the Constitution is to allow a desecration of the Constitution.
To allow such alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia,
and Velasco, Jr., JJ., concur.
____________________
EN BANC
G.R. No. 174153
October 25, 2006
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952

REGISTERED VOTERS V. COMMISSION ON ELECTIONS ET AL.
SEPARATE CONCURRING OPINION
PANGANIBAN, CJ.:
Without the rule of law, there can be no lasting prosperity and certainly no liberty.
Beverley McLachlin 1
Chief Justice of Canada
After a deep reflection on the issues raised and a careful evaluation of the parties'
respective arguments -- both oral and written -- as well as the enlightened and
enlightening Opinions submitted by my esteemed colleagues, I am fully convinced
that the present Petition must be dismissed.
I write, however, to show that my present disposition is completely consistent with

my previous Opinions and votes on the two extant Supreme Court cases involving
an initiative to change the Constitution.
In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and

interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2),
Republic Act 6735 and Comelec Resolution 2300 provide more than sufficient
__________________
'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.'
"With all due respect, I find the majority's position all too sweeping and all too
reason.
Taken Together and Interpreted Properly,

the Constitution, R.A. 6735 and Comelec Resolution

2300 Are Sufficient to Implement Constitutional Initiatives
"While R.A. 6735 may not be a perfect law, it was as the majority openly
concedes intended by the legislature to cover and, I respectfully submit, it
contains enough provisions to effectuate an initiative on the Constitution. I
completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S.
Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative,
sufficiently implements the right of the people to initiate amendments to the
Constitution. Such views, which I shall no longer repeat nor elaborate on, are
thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay
Metropolitan Authority vs. Commission on Elections, that "provisions for
initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate
and not hamper the exercise by the voters of the rights granted thereby"; and in
Garcia vs. Comelec, that any "effort to trivialize the effectiveness of people's
initiatives ought to be rejected."
"No law can completely and absolutely cover all administrative details. In
recognition of this, R.A. 6735 wisely empowered the Commission on Election "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300
on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern
the conduct of initiative on the Constitution and initiative and referendum on
national and local laws," not by the incumbent Commission on Elections but by one
then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo
authority to implement, effectuate and realize our people's power to amend the
Constitution."
__________________
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired
from the Commission, and thus we cannot ascribe any vile motive unto them, other
than an honest, sincere and exemplary effort to give life to a cherished right of our
people.
"The majority argues that while Resolution 2300 is valid in regard to national laws
the same law, R.A. 6735.
"I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300

"I am glad the majority decided to heed our plea to lift the temporary restraining
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.'
Epilogue
"By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
Six months after, in my Separate Opinion in People's Initiative for Reform,

Modernization and Action (PIRMA) v. Comelec,3 I joined the rest of the members of
the Court in ruling "by a unanimous vote, that no grave abuse of discretion could be
attributed to the Comelec in dismissing the petition filed by
__________________
Constitution x x x." While concededly, petitioners in this case were not direct parties
in Santiago, nonetheless the Court's injunction against the Comelec covered ANY
petition, not just the Delfin petition which was the immediate subject of said case.
As a dissenter in Santiago, I believed, and still do, that the majority gravely erred in
rendering such a sweeping injunction, but I cannot fault the Comelec for complying
with the ruling even if it, too, disagreed with said decision's ratio decidendi.
Respondent Comelec was directly enjoined by the highest Court of the land. It had
no choice but to obey. Its obedience cannot constitute grave abuse of discretion.
Refusal to act on the PIRMA petition was the only recourse open to the Comelec.
Any other mode of action would have constituted defiance of the Court and would
have been struck down as grave abuse of discretion and contumacious disregard of
this Court's supremacy as the final arbiter of justiciable controversies.
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the
Constitution, and that whatever administrative details may have been omitted in
said law are satisfactorily provided by Comelec Resolution 2300. The promulgation
of Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which
vests upon the Comelec the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum
and recall." The Omnibus Election Code likewise empowers the electoral body to
"promulgate rules and regulations implementing the provisions of this Code or other
laws which the Commission is required to enforce and administer x x x." Finally and
most relevantly, Section 20 of Ra 6735 specifically authorizes Comelec "to
promulgate rules and regulations as may be necessary to carry out the purposes of
this Act."
"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at
the right time and for the right reason." Let me explain further.
The Right Thing
"A people's initiative is direct democracy in action. It is the right thing that citizens
may avail themselves of to articulate their will. It is a new and treasured feature of
the Filipino constitutional system. Even the majority implicitly conceded its value
and worth in our legal firmament when it implored Congress "not to tarry any longer
in complying with the constitutional mandate to provide for implementation of the

right (of initiative) of the people x x x." Hence, in the en banc case of Subic Bay
Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this
Court unanimously held that "(l)ike elections, initiative and referendum are powerful
and valuable modes of expressing popular
PIRMA therein," since the Commission had "only complied" with the Santiago
Decision.
__________________
sovereignty. And this Court as a matter of policy and doctrine will exert every effort
to nurture, protect and promote their legitimate exercise."
The Right Way
"From the outset, I have already maintained the view that "taken together and
interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA
6735 and Comelec Resolution 2300 provide more than sufficient authority to
implement, effectuate and realize our people's power to amend the Constitution."
Let me now demonstrate the adequacy of RA 6735 by outlining, in concrete terms,
the steps to be taken the right way to amend the Constitution through a people's
initiative.
"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the
petition which shall contain the proposition and the required number of signatories.
Under Sec. 5(c) thereof, the petition shall state the following:
'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x

x;
c.2 the proposition [in full text];
c.3 the reason or reasons therefor [fully and clearly explained];
c.4 that it is not one of exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.'
"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition
include a formal designation of the duly authorized representatives of the
signatories.
"Being a constitutional requirement, the number of signatures becomes a condition

precedent to the filing of the petition, and is jurisdictional. Without such requisite
signatures, the Commission shall motu proprio reject the petition.
"Where the initiators have substantially complied with the above requirements, they
may thence file the petition with the Comelec which is tasked to determine the
sufficiency thereof and to verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters' identification cards. In deciding whether the
petition is sufficient, the Comelec shall also determine if the proposition is proper for
an initiative, i.e., if it consists of an amendment, not a revision, of the Constitution.
Any decision of the electoral body may be appealed to the Supreme Court within
thirty (30) days from notice.
I added "that my position upholding the adequacy of RA 6735 and the validity of
Comelec Resolution 2300 will not ipso
__________________
"Within thirty (30) days from receipt of the petition, and after the determination of
its sufficiency, the Comelec shall publish the same in Filipino and English at least
twice in newspapers of general and local circulation, and set the date of the
plebiscite. The conduct of the plebiscite should not be earlier than sixty (60) days,
but not later than ninety (90) days after certification by the Comelec of the
sufficiency of the petition. The proposition, if approved by a majority of the votes
cast in the plebiscite, becomes effective as of the day of the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of
RA 6735 and the validity of Comelec Resolution 2300 will not ipso facto validate the
PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far
from it. Among others, PIRMA must still satisfactorily hurdle the following searching
issues:
1. Does the proposed change the lifting of the term limits of elective officials -constitute a mere amendment and not a revision of the Constitution?
2. Which registry of voters will be used to verify the signatures in the petition? This
question is relevant considering that under RA 8189, the old registry of voters used
in the 1995 national elections was voided after the barangay elections on May 12,
1997, while the new list may be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the Constitution really emanate from
the people who signed the petition for initiative? Or it is the beneficiaries of term
extension who are in fact orchestrating such move to advance their own political
self-interest?
4. Are the six million signatures genuine and verifiable? Do they really belong to
qualified warm bodies comprising at least 12% of the registered voters nationwide,
of which every legislative district is represented by at least 3% of the registered
voters therein?
"I shall expound on the third question in the next section, The Right Reason.
Question Nos. 1 and 2 above, while important, are basically legal in character and
can be determined by argumentation and memoranda. However, Question No. 4
involves not only legal issues but gargantuan hurdles of factual determination. This
to my mind is the crucible, the litmus test, of a people's petition for initiative. If
herein petitioners, led by PIRMA, succeed in proving -- not just alleging -- that six
million voters of this country indeed want to amend the Constitution, what power on
earth can stop them? Not this Court, not the Comelec, not even the President or
Congress.
facto validate the PIRMA petition and automatically lead to a plebiscite to amend
the Constitution. Far from it." I stressed that PIRMA must show the following, among
others:

__________________
"It took only one million people to stage a peaceful revolution at EDSA, and the very
rafters and foundations of the martial law society trembled, quaked and crumbled.
On the other hand, PIRMA and its co-petitioners are claiming that they have
gathered six million signatures. If, as claimed by many, these six million signatures
are fraudulent, then let them be exposed and damned for all history in a signatureverification process conducted under our open system of legal advocacy.
"More than anything else, it is the truth that I, as a member of this Court and as a
citizen of this country, would like to seek: Are these six million signatures real? By
insisting on an entirely new doctrine of statutory inadequacy, the majority
effectively suppressed the quest for that truth.
The Right Reason
"As mentioned, the third question that must be answered, even if the adequacy of
RA 6735 and the validity of Comelec Resolution 2300 were upheld by the majority
is: Does the clamor for the proposed change to the Constitution really emanate from
the people who signed the petition for initiative? Or is it the beneficiaries of term
extension who are in fact orchestrating such move to advance their own political
self-interests? In other words, is PIRMA's exercise of the right to initiative being done
in accordance with our Constitution and our laws? Is such attempted exercise
legitimate?
"In Garcia vs. Commission on Elections, we described initiative, along with

referendum, as the 'ultimate weapon of the people to negate government
malfeasance and misfeasance.' In Subic Bay, we specified that 'initiative is entirely
the work of the electorate x x x a process of lawmaking by the people themselves
without the participation and against the wishes of their elected representatives.' As
ponente of Subic Bay, I stand foursquare on this principle: The right to amend
through initiative belongs only to the people not to the government and its
minions. This principle finds clear support from utterances of many constitutional
commissioners like those quoted below:
"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied
with the National Assembly x x x [and] precisely a fallback position of the people in
the event that they are dissatisfied." -- Commissioner Ople

"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if
the legislature is not as responsive to the vital and urgent needs of people." -Commissioner Gascon
(1) The proposed change -- the lifting of term limits of elective officials -"constitute[s] a mere amendment and not a revision of the Constitution."
_________________
"[Initiative is an] extraordinary power given to the people [and] reserved for the
people [which] should not be frivolously resorted to." -- Commissioner Romulo
"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it,
our Charter itself provides them other ways of doing so, namely, by calling a
constitutional convention or constituting Congress into a constituent assembly.
These are officialdom's weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate people's
organizations or are they merely fronts for incumbents who want to extend their
terms? This is a factual question which, unfortunately, cannot be judicially answered
anymore, because the Supreme Court majority ruled that the law that implements
it, RA 6735, is inadequate or insufficient insofar as initiatives to the Constitutions
are concerned. With such ruling, the majority effectively abrogated a constitutional
right of our people. That is why in my Separate Opinion in Santiago, I exclaimed that
such precipitate action "is equivalent to burning the whole house to exterminate the
rats, and to killing the patient to relieve him of pain." I firmly maintain that to defeat
PIRMA's effort, there is no need to "burn" the constitutional right to initiative. If
PIRMA's exercise is not "legitimate," it can be exposed as such in the ways I have
discussed short of abrogating the right itself. On the other hand, if PIRMA's
position is proven to be legitimate if it hurdles the four issues I outlined earlier
by all means, we should allow and encourage it. But the majority's theory of
statutory inadequacy has pre-empted unnecessarily and invalidly, in my view
any judicial determination of such legitimacy or illegitimacy. It has silenced the
quest for truth into the interstices of the PIRMA petition.
The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be
proposed. Section 2 of Article XVII precludes amendments "within five years
following [its] ratification x x x nor oftener than once every five years thereafter."
Since its ratification, the 1987 Constitution has never been amended. Hence, the
five-year prohibition is now inoperative and amendments may theoretically be
proposed at any time.
"Be that as it may, I believe given the present circumstances that there is no
more time to lift term limits to enable incumbents to seek reelection in the May 11,
1998 polls. Between today and the next national
(2) The "six million signatures are genuine and verifiable"; and they "really belong
to qualified warm bodies comprising at
__________________
elections, less than eight (8) months remain. Santiago, where the single issue of the
sufficiency of RA 6735 was resolved, took this Court three (3) months, and another
two (2) months to decide the motion for reconsideration. The instant case, where
the same issue is also raised by the petitioners, took two months, not counting a
possible motion for reconsideration. These time spans could not be abbreviated any
further, because due process requires that all parties be given sufficient time to file
their pleadings.
"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 as I
believe it should and allow the Comelec to act on the PIRMA petition, such eightmonth period will not be enough to tackle the four weighty issues I mentioned
earlier, considering that two of them involve tedious factual questions. The
Comelec's decision on any of these issues can still be elevated to this Court for
review, and reconsiderations on our decisions on each of those issues may again be
sought.
"Comelec's herculean task alone of verifying each of the six million signatures is
enormously time-consuming, considering that any person may question the
authenticity of each and every signature, initially before the election registrar, then
before the Comelec on appeal and finally, before this Court in a separate
proceeding. Moreover, the plebiscite itself assuming such stage can be reached
may be scheduled only after sixty (60) but not more than ninety (90) days, from the
time the Comelec and this Court, on appeal, finally declare the petition to be
sufficient.
"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations

or coalitions may start selecting their official candidates for President, Vice
President and Senators on November 27, 1997; the period for filing certificates of
candidacy is from January 11 to February 9, 1998; the election period and campaign
for national officials start on February 10, 1998, while the campaign period for other
elective officials, on March 17, 1998. This means, by the time PIRMA's proposition is
ready if ever for submission directly to the voters at large, it will have been
overcome by the elections. Time will simply run out on PIRMA, if the intention is to
lift term limits in time for the 1998 elections.
"That term limits may no longer be lifted prior to the 1998 elections via a people's
initiative does not detract one whit from (1) my firm conviction that RA 6735 is
sufficient and adequate to implement this constitutional right and, more important,
(2) my faith in the power of the people to initiate changes in local and national laws
and the Constitution. In fact, I think the Court can deliberate on these two items
even more serenely and wisely now that the debates will be free from the din and
distraction of the 1998 elections. After all, jurisprudence is not merely for the here
and now but, more so, for the hereafter and the morrow. Let me therefore stress, by
way of epilogue, my unbending credo in favor of our people's right to initiative.
least 12% of the registered voters nationwide, of which every legislative district is
represented by at least 3% of the registered voters therein."
__________________
Epilogue
"I believe in democracy in our people's natural right to determine our own destiny.
"I believe in the process of initiative as a democratic method of enabling our people
to express their will and chart their history. Initiative is an alternative to bloody
revolution, internal chaos and civil strife. It is an inherent right of the people as
basic as the right to elect, the right to self-determination and the right to individual
liberties. I believe that Filipinos have the ability and the capacity to rise above
themselves, to use this right of initiative wisely and maturely, and to choose what is
best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a
particular official or group of officials in power. Far from it. Such perpetuation is
anathema to democracy. My firm conviction that there is an adequate law
implementing the constitutional right of initiative does not ipso facto result in the
victory of the PIRMA petition or of any proposed constitutional change. There are,
after all, sufficient safeguards to guarantee the proper use of such constitutional
right and to forestall its misuse and abuse. First, initiative cannot be used to revise
the Constitution, only to amend it. Second, the petitioners' signatures must be
validated against an existing list of voters and/or voters' identification cards. Third,
initiative is a reverse power of and by the people, not of incumbent officials and
their machinators. Fourth and most important of all, the signatures must be verified
as real and genuine; not concocted, fictitious or fabricated. The only legal way to do
this is to enable the Commission on Elections to conduct a nationwide verification
process as mandated by the Constitution and the law. Such verification, it bears
stressing, is subject to review by this Court.
"There were, by the most generous estimate, only a million people who gathered at
EDSA in 1986, and yet they changed the history of our country. PIRMA claims six
times that number, not just from the National Capital Region but from all over the
country. Is this claim through the invention of its novel theory of statutory
insufficiency, the Court's majority has stifled the only legal method of determining
whether PIRMA is real or not, whether there is indeed a popular clamor to lift term
limits of elected officials, and whether six million voters want to initiate
amendments to their most basic law. In suppressing a judicial answer to such
questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced zeal to exterminate the rats,
it burned down the whole house. It unceremoniously divested the people of a basic
constitutional right.
In both Opinions, I concluded that we must implement "the right thing [initiative] in
the right way at the right time and for the right reason."
In the present case, I steadfastly stand by my foregoing Opinions in Santiago and

PIRMA. Tested against them, the present Petition of Raul Lambino and Erico
Aumentado must be DISMISSED. Unfortunately, the right thing is being rushed in
the wrong way and for the wrong reasons. Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the

Lambino Petition. After all, the Commission merely followed the holding in Santiago
permanently
____________________
"In the ultimate, the mission of the judiciary is to discover truth and to make it
prevail. This mission is undertaken not only to resolve the vagaries of present
events but also to build the pathways of tomorrow. The sum total of the entire
process of adversarial litigation is the verity of facts and the application of law
thereto. By the majority cop-out in this mission of discovery, our country and our
people have been deprived not only of a basic constitutional right, as earlier noted,
but also of the judicial opportunity to verify the truth."
enjoining the poll body "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."
Indeed, the Comelec did not violate the Constitution, the laws or any
jurisprudence.4 Neither can whim, caprice, arbitrariness or personal bias be
attributed to the Commission.5 Quite the contrary, it prudently followed this Court's
jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred
in ruling on a very difficult and unsettled question of law, this Court still cannot
attribute grave abuse of discretion to the poll body with respect to that action.6
The present Lambino Petition is in exactly the same situation as that of PIRMA in
1997. The differences pointed out by Justice Reynato S. Puno are, with due respect,
superficial. It is argued that, unlike the present Lambino Petition, PIRMA did not
contain verified signatures. These are distinctions that do not make a difference.
Precisely, Justice Puno is urging a remand, because the verification issue is
"contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the
Lambino Petitions contain unverified signatures. Therefore, they both deserve the
same treatment: DISMISSAL.
Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec
was that the Commission had "only complied" with this Court's Decision in Santiago,
the same reason given by Comelec in this case. The Separate Opinions in PIRMA

gave no other reason. No one argued, even remotely, that the PIRMA Petition should
have been dismissed because the signatures were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional

requirement, the number of signatures becomes a condition precedent to the filing
of the petition, and is jurisdictional.7 Without those signatures, the Comelec shall
motu proprio reject the petition."
So, until and unless Santiago is revisited and changed by this Court or the legal
moorings of the exercise of the right are substantially changed, the Comelec cannot
be faulted for acting in accord with this Court's pronouncements. Respondent
Commission has no discretion, under any guise, to refuse enforcement of any final
decision of this Court.8 The refusal of the poll body to act on the Lambino Petition
was its only recourse. Any other mode of action would appear not only
presumptuous, but also contemptuous. It would have constituted defiance of the
Court and would have surely been struck down as grave abuse of discretion and
contumacious disregard of the supremacy of this Court as the final arbiter of
justiciable controversies.
Even assuming further that this Court rules, as I believe it should (for the reasons
given in my Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed
sufficient to implement an initiative to amend the Constitution, still, no grave abuse
of discretion can be attributed to the Comelec for merely following prevailing
jurisprudence extant at the time it rendered its ruling in question.
Only Amendments,
Not Revisions
I reiterate that only amendments, not revisions, may be the proper subject of an
initiative to change the Constitution. This principle is crystal clear from even a
layperson's reading of the basic law.9
I submit that changing the system of government from presidential to parliamentary

and the form of the legislature from bicameral to unicameral contemplates an
overhaul of the structure of government. The ponencia has amply demonstrated
that the merger of the legislative and the executive branches under a unicameralparliamentary system, "[b]y any legal test and under any jurisdiction," will "radically

alter the framework of government as set forth in the Constitution." Indeed, the
proposed changes have an overall implication on the entire Constitution; they
effectively rewrite its most important and basic provisions. The prolixity and
complexity of the changes cannot be categorized, even by semantic generosity, as
"amendments."
In addition, may I say that of the three modes of changing the Constitution,
revisions (or amendments) may be proposed only through the first two: by Congress
or by a constitutional convention. Under the third mode -- people's initiative -- only
amendments are allowed. Many of the justices' Opinions have cited the historical,
philosophical and jurisprudential bases of their respective positions. I will not add to
the woes of the reader by reiterating them here.
Suffice it to say that, to me, the practical test to differentiate an amendment from a
revision is found in the Constitution itself: a revision may be done only when the
proposed change can be drafted, defined, articulated, discussed and agreed upon
after a mature and democratic debate in a deliberative body like Congress or a
Convention. The changes proposed must necessarily be scrutinized, as their
adoption or non-adoption must result from an informed judgment.
Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987
Constitutions had to spend many months of purposeful discussions, democratic
debates and rounds of voting before they could agree on the wordings covering the
philosophy, the underlying principles, and the structure of government of our
Republic.
Verily, even bills creating or changing the administrative structure of local

governments take several weeks or even months of drafting, reading, and debating
before Congress can approve them. How much more when it comes to constitutional
changes?
A change in the form of government of our country from presidential-bicameral to

parliamentary-unicameral is monumental. Even the initiative proponents admit this
fact. So, why should a revision be rammed down our people's throats without the
benefit of intelligent discussion in a deliberative assembly?
Added to the constitutional mandate barring revisions is the provision of RA 6735

expressly prohibiting petitions for initiative from "embracing more than one subject
matter."10 The present initiative covers at least two subjects: (1) the shift from a
presidential to a parliamentary form of government; and (2) the change from a

bicameral to a unicameral legislature.11 Thus, even under Republic Act 6735 -- the
law that Justice Puno and I hold to be sufficient and valid -- the Lambino Petition
deserves dismissal.
12 Percent and 3 Percent Thresholds

Not Proven by Petitioners
The litmus test of a people's petition for initiative is its ability to muster the
constitutional requirement that it be supported by at least 12 percent of the
registered voters nationwide, of which at least 3 percent of the registered voters in
every legislative district must be represented. As pointed out by Intervenors One
Voice, Inc., et al., however, records show that there was a failure to meet the
minimum percentages required.12
Even Justice Puno concedes that the 12 percent and 3 percent constitutional
requirements involve "contentious facts," which have not been proven by the
Lambino Petition. Thus, he is urging a remand to the Comelec.
But a remand is both imprudent and futile. It is imprudent because the Constitution
itself mandates the said requisites of an initiative petition. In other words, a petition
that does not show the required percentages is fatally defective and must be
dismissed, as the Delfin Petition was, in Santiago.
Furthermore, as the ponencia had discussed extensively, the present Petition is void
and unconstitutional. It points out that the Petition dismally fails to comply with the
constitutional requirement that an initiative must be directly proposed by the
people. Specifically, the ponencia has amply established that petitioners were
unable to show that the Lambino Petition contained, or incorporated by attachment,
the full text of the proposed changes.
So, too, a remand is futile. Even if the required percentages are proven before the
Commission, the Petition must still be dismissed for proposing a revision, not an
amendment, in gross violation of the Constitution. At the very least, it proposes
more than one subject, in violation of Republic Act 6735.
Summation

Petitioners plead with this Court to hear the voice of the people because, in the
words of Justice Puno who supports them, the "people's voice is sovereign in a
democracy."
I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in

PIRMA that "initiative is a democratic method of enabling our people to express
their will and chart their history. x x x. I believe that Filipinos have the ability and
the capacity to rise above themselves, to use this right of initiative wisely and
maturely, and to choose what is best for themselves and their posterity."
This belief will not, however, automatically and blindly result in an initiative to
change the Constitution, because the present Petition violates the following:
The Constitution (specifically Article XVII, which allows only amendments, not
revisions, and requires definite percentages of verified signatures)
The law (specifically, Republic Act 6735, which prohibits petitions containing more
than one subject)
Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then

under consideration on the ground that, by following the Santiago ruling, the
Comelec had not gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both imprudent and futile.
More tellingly, it is a cop-out, a hand-washing already discredited 2000 years ago.
Instead of finger-pointing, I believe we must confront the issues head on, because
the people expect no less from this august and venerable institution of supreme
justice.
Epilogue
At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like
referendum and recall, is a treasured feature of the Filipino constitutional system. It
was born out of our world-admired and often-imitated People Power, but its misuse
and abuse must be resolutely rejected. Democracy must be cherished, but mob rule
vanquished.

The Constitution is a sacred social compact, forged between the government and
the people, between each individual and the rest of the citizenry. Through it, the
people have solemnly expressed their will that all of them shall be governed by
laws, and their rights limited by agreed-upon covenants to promote the common
good. If we are to uphold the Rule of Law and reject the rule of the mob, we must
faithfully abide by the processes the Constitution has ordained in order to bring
about a peaceful, just and humane society. Assuming arguendo that six million
people allegedly gave their assent to the proposed changes in the Constitution, they
are nevertheless still bound by the social covenant -- the present Constitution -which was ratified by a far greater majority almost twenty years ago.14 I do not
denigrate the majesty of the sovereign will; rather, I elevate our society to the
loftiest perch, because our government must remain as one of laws and not of men.
Upon assuming office, each of the justices of the Supreme Court took a solemn oath
to uphold the Constitution. Being the protectors of the fundamental law as the
highest expression of the sovereign will, they must subject to the strictest scrutiny
any attempt to change it, lest it be trivialized and degraded by the assaults of the
mob and of ill-conceived designs. The Court must single-mindedly defend the
Constitution from bogus efforts falsely attributed to the sovereign people.
The judiciary may be the weakest branch of government. Nonetheless, when ranged
against incessant voices from the more powerful branches of government, it should
never cower in submission. On the other hand, I daresay that the same weakness of
the Court becomes its strength when it speaks independently through decisions that
rightfully uphold the supremacy of the Constitution and the Rule of Law. The
strength of the judiciary lies not in its lack of brute power, but in its moral courage
to perform its constitutional duty at all times against all odds. Its might is in its
being right.15
During the past weeks, media outfits have been ablaze with reports and innuendoes
about alleged carrots offered and sticks drawn by those interested in the outcome
of this case.16 There being no judicial proof of these allegations, I shall not
comment on them for the nonce, except to quote the Good Book, which says,
"There is nothing hidden that will not be revealed, and nothing secret that will not
be known and come to light."17
Verily, the Supreme Court is now on the crossroads of history. By its decision, the
Court and each of its members shall be judged by posterity. Ten years, fifty years, a
hundred years -- or even a thousand years -- from now, what the Court did here, and
how each justice opined and voted, will still be talked about, either in shame or in
pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott,
and the loathing of Javellana still linger and haunt to this day.
Let not this case fall into the same damnation. Rather, let this Court be known
throughout the nation and the world for its independence, integrity, industry and
intelligence.
WHEREFORE, I vote to DISMISS the Petition.
ARTEMIO V. PANGANIBAN
Chief Justice
____________________
EN BANC
G.R. No. 174153
October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299
October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG,

Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR.
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO
A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION
YNARES-SANTIAGO, J.:
I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the
Court's ruling in Santiago v. COMELEC1 is not a binding precedent. However, it is my
position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735)
be held as sufficient law for the purpose of people's initiative to amend the
Constitution, the petition for initiative in this case must nonetheless be dismissed.
There is absolutely no showing here that petitioners complied with R.A. 6735, even
as they blindly invoke the said law to justify their alleged people's initiative. Section
5(b) of R.A. 6735 requires 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 three per centum (3%) of the registered voters therein." On the other hand,
Section 5(c)2 of the same law requires that the petition should state, among others,
the proposition3 or the "contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed." If we were to apply Section 5(c) to an
initiative to amend the Constitution, as petitioners submit, the petition for initiative
signed by the required number of voters should incorporate therein a text of the
proposed changes to the Constitution. However, such requirement was not followed
in the case at bar.
During the oral arguments, petitioner Lambino admitted that they printed a mere
100,000 copies of the text of the proposed changes to the Constitution. According to
him, these were subsequently distributed to their agents all over the country, for
attachment to the sheets of paper on which the signatures were to be affixed. Upon
being asked, however, if he in fact knew whether the text was actually attached to
the signature sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for certain
whether their representatives complied with this requirement.
The petition filed with the COMELEC, as well as that which was shown to this Court,
indubitably establish that the full text of the proposed changes was not attached to
the signature sheets. All that the signature sheets contained was the general
proposition and abstract, which falls short of the full text requirement of R.A. 6735.
The necessity of setting forth the text of the proposed constitutional changes in the
petition for initiative to be signed by the people cannot be seriously disputed. To

begin with, Article XVII, Section 2 of the Constitution unequivocally states that
"[a]mendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein." Evidently, for the people to
propose amendments to the Constitution, they must, in the first instance, know
exactly what they are proposing. It is not enough that they merely possess a
general idea of the proposed changes, as the Constitution speaks of a "direct"
proposal by the people.
Although the framers of the Constitution left the matter of implementing the
constitutional right of initiative to Congress, it might be noted that they themselves
reasonably assumed that the draft of the proposed constitutional amendments
would be shown to the people during the process of signature gathering. Thus
MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition
of at least 10 percent of the registered voters." How will we determine that 10
percent has been achieved? How will the voters manifest their desire, is it by
signature?
MR. SUAREZ. Yes, by signatures.
MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ. That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.4
It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the
full text of the proposed changes must necessarily be stated in or attached to the
initiative petition. The signatories to the petition must be given an opportunity to

fully comprehend the meaning and effect of the proposed changes to enable them
to make a free, intelligent and well-informed choice on the matter.
Needless to say, the requirement of setting forth the complete text of the proposed
changes in the petition for initiative is a safeguard against fraud and deception. If
the whole text of the proposed changes is contained in or attached to the petition,
intercalations and riders may be duly avoided. Only then can we be assured that the
proposed changes are truly of the people and that the signatories have been fully
apprised of its implications.
If a statutory provision is essential to guard against fraud, corruption or deception in

the initiative and referendum process, such provision must be viewed as an
indispensable requirement and failure to substantially comply therewith is fatal.5
The failure of petitioners in this case to comply with the full text requirement
resultantly rendered their petition for initiative fatally defective.
The petition for initiative is likewise irretrievably infirm because it violates the one
subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures. The following cannot be the subject of an initiative
or referendum petition:
(a) No petition embracing more than one subject shall be submitted to the
electorate; x x x
The one subject rule, as relating to an initiative to amend the Constitution, has the
same object and purpose as the one subject-one bill rule embodied in Article VI,
Section 26(1)6 of the Constitution.7 To elaborate, the one subject-one bill rule was
designed to do away with the practice of inserting two or more unrelated provisions
in one bill, so that those favoring one provision would be compelled to adopt the
others. By this process of log-rolling, the adoption of both provisions could be
accomplished and ensured, when neither, if standing alone, could succeed on its
own merits.
As applied to the initiative process, the one subject rule is essentially designed to
prevent surprise and fraud on the electorate. It is meant to safeguard the integrity
of the initiative process by ensuring that no unrelated riders are concealed within

the terms of the proposed amendment. This in turn guarantees that the signatories
are fully aware of the nature, scope and purpose of the proposed amendment.
Petitioners insist that the proposed changes embodied in their petition for initiative
relate only to one subject matter, that is the shift from presidential to a
parliamentary system of government. According to petitioners, all of the other
proposed changes are merely incidental to this main proposal and are reasonably
germane and necessary thereto.8 An examination of the text of the proposed
changes reveals, however, that this is not the case.
The proposed changes to the Constitution cover other subjects that are beyond the
main proposal espoused by the petitioners. Apart from a shift from the presidential
to a parliamentary form of government, the proposed changes include the abolition
of one House of Congress,9 and the convening of a constituent assembly to propose
additional amendments to the Constitution.10 Also included within its terms is an
omnibus declaration that those constitutional provisions under Articles VI and VII,
which are inconsistent with the unicameral-parliamentary form of government, shall
be deemed amended to conform thereto.
It is not difficult to see that while the proposed changes appear to relate only to a
shift in the form of government, it actually seeks to affect other subjects that are
not reasonably germane to the constitutional alteration that is purportedly sought.
For one, a shift to a parliamentary system of government does not necessarily result
in the adoption of a unicameral legislature. A parliamentary system can exist in
many different "hybrid" forms of government, which may or may not embrace
unicameralism.11 In other words, the shift from presidential to parliamentary
structure and from a bicameral to a unicameral legislature is neither the cause nor
effect of the other.
I also fail to see the relation of convening a constituent assembly with the proposed
change in our system of government. As a subject matter, the convening of a
constituent assembly to amend the Constitution presents a range of issues that is
far removed from the subject of a shift in government. Besides, the constituent
assembly is supposed to convene and propose amendments to the Constitution
after the proposed change in the system of government has already taken place.
This only goes to show that the convening of the constituent assembly is not
necessary to effectuate a change to a parliamentary system of government.
The omnibus statement that all provisions under Articles VI and VII which are
inconsistent with a unicameral-parliamentary system of government shall be
deemed amended is equally bothersome. The statement does not specify what

these inconsistencies and amendments may be, such that everyone is left to guess
the provisions that could eventually be affected by the proposed changes. The
subject and scope of these automatic amendments cannot even be spelled out with
certainty. There is thus no reasonable measure of its impact on the other
constitutional provisions.
The foregoing proposed changes cannot be the subject of a people's initiative under
Section 2, Article XVII of the Constitution. Taken together, the proposed changes
indicate that the intendment is not simply to effect substantial amendments to the
Constitution, but a revision thereof. The distinction between an amendment and
revision was explained by Dean Vicente G. Sinco, as follows:
"Strictly speaking, the act of revising a constitution involves alterations of different

portions of the entire document. It may result in the rewriting either of the whole
constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the factor that
characterizes it as an act of revision is the original intention and plan authorized to
be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced with an entirely new
one.
The act of amending a constitution, on the other hand, envisages a change of only a
few specific provisions. The intention of an act to amend is not to consider the
advisability of changing the entire constitution or of considering that possibility. The
intention rather is to improve specific parts of the existing constitution or to add to
it provisions deemed essential on account of changed conditions or to suppress
portions of it that seem obsolete, or dangerous, or misleading in their effect."12
The foregoing traditional exposition of the difference between amendment and

revision has indeed guided us throughout our constitutional history. However, the
distinction between the two terms is not, to my mind, as significant in the context of
our past constitutions, as it should be now under the 1987 Constitution. The reason
for this is apparent. Under our past constitutions, it was Congress alone, acting
either as a constituent assembly or by calling out a constitutional convention, that
exercised authority to either amend or revise the Constitution through the
procedures therein described. Although the distinction between the two terms was
theoretically recognized under both the 1935 and 1973 Constitutions, the need to
highlight the difference was not as material because it was only Congress that could
effect constitutional changes by choosing between the two modalities.

However, it is different now under the 1987 Constitution. Apart from providing for
the two modes of either Congress constituting itself as a constituent assembly or
calling out for a constitutional convention, a third mode was introduced for
proposing changes to the Constitution. This mode refers to the people's right to
propose amendments to the fundamental law through the filing of a petition for
initiative.
Otherwise stated, our experience of what constitutes amendment or revision under

the past constitutions is not determinative of what the two terms mean now, as
related to the exercise of the right to propose either amendments or revision. The
changes introduced to both the Constitutions of 1935 and 1973 could have indeed
been deemed an amendment or revision, but the authority for effecting either
would never have been questioned since the same belonged solely to Congress. In
contrast, the 1987 Constitution clearly limits the right of the people to directly
propose constitutional changes to amendments only. We must consequently not be
swayed by examples of constitutional changes effected prior to the present
fundamental law, in determining whether such changes are revisory or amendatory
in nature.
In this regard, it should be noted that the distinction laid down by Justice Felix Q.
Antonio in Javellana v. Executive Secretary13 related to the procedure to be
followed in ratifying a completely new charter proposed by a constitutional
convention. The authority or right of the constitutional convention itself to effect
such a revision was not put in issue in that case. As far as determining what
constitutes "amendments" for the purpose of a people's initiative, therefore, we
have neither relevant precedent nor prior experience. We must thus confine
ourselves to Dean Sinco's basic articulation of the two terms.
It is clear from Dean Sinco's explanation that a revision may either be of the whole
or only part of the Constitution. The part need not be a substantial part as a change
may qualify as a revision even if it only involves some of the important provisions.
For as long as the intention and plan to be carried out contemplate a consideration
of all the provisions of the Constitution "to determine which should be altered or
suppressed, or whether the whole document should be replaced with an entirely
new one," the proposed change may be deemed a revision and not merely an
amendment.
Thus, it is not by the sheer number alone of the proposed changes that the same
may be considered as either an amendment or revision. In so determining, another
overriding factor is the "original intention and plan authorized to be carried out" by
the proposed changes. If the same relates to a re-examination of the entire
document to see which provisions remain relevant or if it has far-reaching effects on

the entire document, then the same constitutes a revision and not a mere
amendment of the Constitution.
From the foregoing, it is readily apparent that a combination of the quantitative and
qualitative test is necessary in assessing what may be considered as an amendment
or revision. It is not enough that we focus simply on the physical scope of the
proposed changes, but also consider what it means in relation to the entire
document. No clear demarcation line can be drawn to distinguish the two terms and
each circumstance must be judged on the basis of its own peculiar conditions. The
determination lies in assessing the impact that the proposed changes may have on
the entire instrument, and not simply on an arithmetical appraisal of the specific
provisions which it seeks to affect.
In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for
the combination of quantitative and qualitative assessment of proposed
constitutional changes, in order to determine whether the same is revisory or
merely amendatory. In that case, the McFadden court found the proposed changes
extensive since at least 15 of the 25 articles contained in the California Constitution
would either be repealed in their entirety or substantially altered, and four new
topics would be introduced. However, it went on to consider the qualitative effects
that the proposed initiative measure would have on California's basic plan of
government. It observed that the proposal would alter the checks and balances
inherent in such plan, by delegating far-reaching and mixed powers to an
independent commission created under the proposed measure. Consequently, the
proposal in McFadden was not only deemed as broad and numerous in physical
scope, but was also held as having a substantive effect on the fundamental
governmental plan of the State of California.
The dual aspect of the amendment/revision analysis was reiterated by the California
Supreme Court in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that
case was called, would vest in the United States Supreme Court all judicial
interpretative powers of the California courts over fundamental criminal defense
rights in that state. It was observed that although quantitatively, the proposition did
"not seem so extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing provisions," the
same, nonetheless, "would substantially alter the substance and integrity of the
state Constitution as a document of independent force and effect." Quoting Amador
Valley Joint Union High School District v. State Board of Equalization,16 the Raven
court said:
". . . apart from a measure effecting widespread deletions, additions and

amendments involving many constitutional articles, 'even a relatively simple

enactment may accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also[A]n enactment which
purported to vest all judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or the number of
existing articles or sections affected by such change.'" (Underscoring supplied and
citations omitted)
Thus, in resolving the amendment/revision issue, the California Court examines both
the quantitative and qualitative effects of a proposed measure on its constitutional
scheme. Substantial changes in either respect could amount to a revision.17
I am persuaded that we can approach the present issue in the same manner. The
experience of the courts in California is not far removed from the standards
expounded on by Dean Sinco when he set out to differentiate between amendment
and revision. It is actually consistent, not only with our traditional concept of the
two terms, but also with the mindset of our constitutional framers when they
referred to the disquisition of Justice Antonio in Javellana.18 We must thus consider
whether the proposed changes in this case affect our Constitution in both its
substantial physical entirety and in its basic plan of government.
The question posed is: do the proposed changes, regardless of whether these are
simple or substantial, amount to a revision as to be excluded from the people's right
to directly propose amendments to the fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test in determining

the nature of the proposed changes. These tests are consistent with Dean Sinco's
traditional concept of amendment and revision when he explains that,
quantitatively, revision "may result in the rewriting either of the whole constitution,
or the greater part of it, or perhaps only some of its provisions." In any case, he
continues, "the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out." Unmistakably, the latter statement
refers to the qualitative effect of the proposed changes.
It may thus be conceded that, quantitatively, the changes espoused by the

proponents in this case will affect only two (2) out of the eighteen (18) articles of
the 1987 Constitution, namely, Article VI (Legislative Department) and Article VII
(Executive Department), as well as provisions that will ensure the smooth transition
from a presidential-bicameral system to a parliamentary-unicameral structure of
government. The quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987 Constitution.
However, it is my opinion that the proposed changes will have serious qualitative
consequences on the Constitution. The initiative petition, if successful, will
undoubtedly alter, not only our basic governmental plan, but also redefine our
rights as citizens in relation to government. The proposed changes will set into
motion a ripple effect that will strike at the very foundation of our basic
constitutional plan. It is therefore an impermissible constitutional revision that may
not be effected through a people's initiative.
Petitioners' main proposal pertains to the shifting of our form of government from
the presidential to the parliamentary system. An examination of their proposal
reveals that there will be a fusion of the executive and legislative departments into
one parliament that will be elected on the basis of proportional representation. No
term limits are set for the members of parliament except for those elected under
the party-list system whose terms and number shall be provided by law. There will
be a President who shall be the head of state, but the head of government is the
Prime Minister. The latter and his cabinet shall be elected from among the members
of parliament and shall be responsible to parliament for the program of government.
The preceding proposal indicates that, under the proposed system, the executive
and legislature shall be one and the same, such that parliament will be the
paramount governing institution. What this implies is that there will be no
separation between the law-making and enforcement powers of the state, that are
traditionally delineated between the executive and legislature in a presidential form
of government. Necessarily, the checks and balances inherent in the fundamental
plan of our U.S.-style presidential system will be eliminated. The workings of
government shall instead be controlled by the internal political dynamics prevailing
in the parliament.
Our present governmental system is built on the separation of powers among the
three branches of government. The legislature is generally limited to the enactment
of laws, the executive to the enforcement of laws and the judiciary to the
application of laws. This separation is intended to prevent a concentration of
authority in one person or group that might lead to an irreversible error or abuse in
its exercise to the detriment of our republican institutions. In the words of Justice
Laurel, the doctrine of separation of powers is intended to secure action, to forestall
overaction, to prevent despotism and obtain efficiency.19
In the proposed parliamentary system, there is an obvious lack of formal

institutional checks on the legislative and executive powers of the state, since both
the Prime Minister and the members of his cabinet are drawn from parliament.

There are no effective limits to what the Prime Minister and parliament can do,
except the will of the parliamentary majority. This goes against the central principle
of our present constitutional scheme that distributes the powers of government and
provides for counteraction among the three branches. Although both the
presidential and parliamentary systems are theoretically consistent with
constitutional democracy, the underlying tenets and resulting governmental
framework are nonetheless radically different.
Consequently, the shift from presidential to parliamentary form of government

cannot be regarded as anything but a drastic change. It will require a total overhaul
of our governmental structure and involve a re-orientation in the cardinal doctrines
that govern our constitutional set-up. As explained by Fr. Joaquin Bernas, S.J., a
switch from the presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure.20 It cannot, by
any standard, be deemed as a mere constitutional amendment.

dangerous. In revision, however, the guiding original intention and plan
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered.21 (Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise shows the

intention of the proponents to effect even more far-reaching changes in our
fundamental law. If the original intent were to simply shift the form of government
to the parliamentary system, then there would have been no need for the calling
out of a constituent assembly to propose further amendments to the Constitution. It
should be noted that, once convened, a constituent assembly can do away and
replace any constitutional provision which may not even have a bearing on the shift
to a parliamentary system of government. The inclusion of such a proposal reveals
the proponents' plan to consider all provisions of the constitution, either to
determine which of its provisions should be altered or suppressed or whether the
whole document should be replaced with an entirely new one.
Consequently, it is not true that only Articles VI and VII are covered by the alleged
people's initiative. The proposal to convene a constituent assembly, which by its
terms is mandatory, will practically jeopardize the future of the entire Constitution
and place it on shaky grounds. The plan of the proponents, as reflected in their
proposed changes, goes beyond the shifting of government from the presidential to

the parliamentary system. Indeed, it could even extend to the "fundamental nature
of our state as a democratic and republican state."
To say that the proposed changes will affect only the constitution of government is
therefore a fallacy. To repeat, the combined effect of the proposed changes to
Articles VI and VII and those pertaining to the Transitory Provisions under Article
XVIII indubitably establish the intent and plan of the proponents to possibly affect
even the constitutions of liberty and sovereignty. Indeed, no valid reason exists for
authorizing further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.
There is no question here that only amendments to the Constitution may be

undertaken through a people's initiative and not a revision, as textually reflected in
the Constitution itself. This conclusion is inevitable especially from a comparative
examination of Section 2 in relation to Sections 1 and 4 of Article XVII, which state:
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
SECTION 2. Amendments to this Constitution may likewise be directly proposed by

xxxx
SECTION 4. Any amendment to, or revision of, this Constitution under Section 1
hereof shall be valid when ratified by a majority of the votes cast in a plebiscite

which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not earlier than sixty days nor later
than ninety days after the certification by the Commission of Elections of the
sufficiency of the petition. (Underscoring supplied)
It is clear that the right of the people to directly propose changes to the Constitution
is limited to amendments and does not include a revision thereof. Otherwise, it
would have been unnecessary to provide for Section 2 to distinguish its scope from
the rights vested in Congress under Section 1. The latter lucidly states that
Congress may propose both amendments and a revision of the Constitution by
either convening a constituent assembly or calling for a constitutional convention.
Section 2, on the other hand, textually commits to the people the right to propose
only amendments by direct action.
To hold, therefore, that Section 2 allows substantial amendments amounting to

revision obliterates the clear distinction in scope between Sections 1 and 2. The
intention, as may be seen from a cursory perusal of the above provisions, is to
provide differing fields of application for the three modes of effecting changes to the
Constitution. We need not even delve into the intent of the constitutional framers to
see that the distinction in scope is definitely marked. We should thus apply these
provisions with a discerning regard for this distinction. Again, McFadden22 is
instructive:
". . . The differentiation required is not merely between two words; more accurately
it is between two procedures and between their respective fields of application.
Each procedure, if we follow elementary principles of statutory construction, must
be understood to have a substantial field of application, not to be x x x a mere
alternative procedure in the same field. Each of the two words, then, must be
understood to denote, respectively, not only a procedure but also a field of
application appropriate to its procedure. The people of this state have spoken; they
made it clear when they adopted article XVIII and made amendment relatively
simple but provided the formidable bulwark of a constitutional convention as a
protection against improvident or hasty (or any other) revision, that they
understood that there was a real difference between amendment and revision. We
find nothing whatsoever in the language of the initiative amendment of 1911 (art.
IV, 1) to effect a breaking down of that difference. On the contrary, the distinction
appears to be x x x scrupulously preserved by the express declaration in the
amendment x x x that the power to propose and vote on "amendments to the
Constitution" is reserved directly to the people in initiative proceedings, while

leaving unmentioned the power and the procedure relative to constitutional
revision, which revisional power and procedure, it will be remembered, had already
been specifically treated in section 2 of article XVIII. Intervenors' contention--that
any change less than a total one is but amendatory--would reduce to the rubble of
absurdity the bulwark so carefully erected and preserved. Each situation involving
the question of amendment, as contrasted with revision, of the Constitution must,
we think, be resolved upon its own facts."
Thus, our people too have spoken when they overwhelmingly ratified the 1987
Constitution, with the provisions on amendments and revisions under Article XVII.
The voice and will of our people cannot be any clearer when they limited people's
initiative to mere amendments of the fundamental law and excluded revisions in its
scope. In this regard, the task of the Court is to give effect to the people's voice, as
expressed unequivocally through the Constitution.
Article XVII on amendments and revisions is called a "constitution of sovereignty"

because it defines the constitutional meaning of "sovereignty of the people." It is
through these provisions that the sovereign people have allowed the expression of
their sovereign will and have canalized their powers which would otherwise be
plenary. By approving these provisions, the sovereign people have decided to limit
themselves and future generations in the exercise of their sovereign power.23 They
are thus bound by the constitution and are powerless, whatever their numbers, to
change or thwart its mandates, except through the means prescribed by the
Constitution itself.24
It is thus misplaced to argue that the people may propose revisions to the
Constitution through people's initiative because their representatives, whose power
is merely delegated, may do so. While Section 1 of Article XVII may be considered
as a provision delegating the sovereign powers of amendment and revision to
Congress, Section 2, in contrast, is a self-limitation on that sovereign power. In the
words of Cooley:
x x x Although by their constitutions the people have delegated the exercise of

sovereign powers to the several departments, they have not thereby divested
themselves of the sovereignty. They retain in their own hands, so far as they have
thought it needful to do so, a power to control the governments they create, and the
three departments are responsible to and subject to be ordered, directed, changed
or abolished by them. But this control and direction must be exercised in the
legitimate mode previously agreed upon. The voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at the times and
under the conditions which they themselves have prescribed and pointed out by the
Constitution, or which, consistently with the Constitution, have been prescribed and

pointed out for them by statute; and if by any portion of the people, however large,
an attempt should be made to interfere with the regular working of the agencies of
government at any other time or in any other mode than as allowed by existing law,
either constitutional or statutory, it would be revolutionary in character, and must
be resisted and repressed by the officers who, for the time being, represent
legitimate government.25 (Underscoring supplied)
Consequently, there is here no case of "the spring rising above its source." Nor is it
one where the people's sovereign power has been relegated to a lesser plane than
that of Congress. In choosing to exercise self-limitation, there is no absence or lack
of even a fraction of the sovereign power of the people since self-limitation itself is
an expression of that sovereign power. The people have chosen to delegate and
limit their sovereign power by virtue of the Constitution and are bound by the
parameters that they themselves have ordained. Otherwise, if the people choose to
defy their self-imposed constitutional restraints, we will be faced with a
revolutionary situation.26
It has repeatedly been emphasized that ours is a democratic and republican

state.27 Even as we affirm, however, that aspect of direct democracy, we should
not forget that, first and foremost, we are a constitutional democracy. To uphold
direct democracy at the expense of the fundamental law is to sanction, not a
constitutional, but an extra-constitutional recourse. This is clearly beyond the
powers of the Court who, by sovereign mandate, is the guardian and keeper of the
Constitution.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.
CONSUELO YNARES-SANTIAGO
Associate Justice
____________________
EN BANC
G.R. NO. 174153

RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952
REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitionersintervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS, petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositorsintervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND
DR. REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROSBARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA,
TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS,
JR., FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R.
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositorsintervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositorsintervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR.,
oppositor-intervenor;
G.R. NO. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG,

petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS,
SR. AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.
ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE,
respondents.
x ---------------------------------------------------------------------------------------- x
CONCURRING OPINION
SANDOVALGUTIERREZ, J.:
Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be
exercised in choosing one's battlecry, lest it does more harm than good to one's
cause. In its original context, the complete version of this Latin phrase means
exactly the opposite of what it is frequently taken to mean. It originated from a holy
man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui solent dicere
vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit,"
meaning, "And those people should not be listened to who keep on saying, 'The
voice of the people is the voice of God,' since the riotousness of the crowd is always
very close to madness."1 Perhaps, it is by providence that the true meaning of the
Latin phrase is revealed upon petitioners and their allies that they may reflect
upon the sincerity and authenticity of their "people's initiative."
History has been a witness to countless iniquities committed in the name of God.
Wars were waged, despotism tolerated and oppressions justified all these
transpired as man boasted of God's imprimatur. Today, petitioners and their allies
hum the same rallying call, convincing this Court that the people's initiative is the
"voice of the people" and, therefore, the "voice of God." After a thorough
consideration of the petitions, I have come to realize that man, with his ingenuity
and arrogance, has perfected the craft of imitating the voice of God. It is against
this kind of genius that the Court must guard itself.
The facts of the case are undisputed.
In 1996, the Movement for People's Initiative sought to exercise the power of
initiative under Section 2, Article XVII of the Constitution which reads:
Section 2. Amendments to this Constitution may likewise be directly proposed by

ratification of this Constitution nor oftener than once every five years thereafter,
The exercise was thwarted by a petition for prohibition filed with this Court by
Senator Miriam Defensor Santiago, et al., entitled "Miriam Defensor Santiago,
Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections
(COMELEC), Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as
founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On March 19,
1997, this Court rendered its Decision in favor of petitioners, holding that Republic
Act No. 6735 (R.A. No. 6735), An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned." A majority of eight (8) Justices fully concurred with this
ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no
need to rule on the adequacy of R.A. No. 6735.
On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their
positions. One (1) filed an inhibition and the other one (1) joined the minority
opinion. As a consequence, of the thirteen (13) Justices who participated in the
deliberation, six (6) voted in favor of the majority opinion, while the other six (6)
voted in favor of the minority opinion.3
A few months thereafter, or on September 23, 1997, the Court dismissed a similar
case, entitled People's Initiative for Reform, Modernization and Action (PIRMA) v.
Commission on Elections4 on the ground that the COMELEC did not commit grave
abuse of discretion when it dismissed PIRMA's Petition for Initiative to Propose

Amendments to the Constitution "it appearing that that it only complied with the
dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC)
promulgated on March 19, 1997, and its Resolution of June 10, 1997." Seven (7)
Justices voted that there was no need to re-examine its ruling, as regards the issue
of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different
premise that the case at bar is not the proper vehicle for such re-examination. Five
(5) Justice opined otherwise.
This time, another group known as Sigaw ng Bayan, in coordination with the Union
of Local Authorities of the Philippines (ULAP), have gathered signatures in support of
the proposed amendments to the Constitution, which entail a change in the form of
government from bicameral-presidential to unicameral-parliamentary, thus:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by
law, to be apportioned among the provinces, representative districts, and cities in
accordance with the number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the basis of a uniform and
progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at

least twenty-five years old on the day of the election, a resident of his district for at
least one year prior thereto, and shall be elected by the qualified voters of his
district for a term of five years without limitation as to the number thereof, except
those under the party-list system which shall be provided for by law and whose
number shall be equal to twenty per centum of the total membership coming from
the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended
to read, as follows:
Section 1. There shall be a President who shall be the Head of State. The executive
power shall be exercised by a Prime Minister, with the assistance of the Cabinet.
The Prime Minister shall be elected by a majority of all the Members of Parliament
from among themselves. He shall be responsible to the Parliament for the program
of government.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential

to a unicameral-Parliamentary form of government, there shall be a new Article
XVIII, entitled "Transitory Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the
expiration of their term at noon on the thirtieth day of June 2010 and shall continue
to exercise their powers under the 1987 Constitution unless impeached by a vote of
two thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under Article VII as amended.
sequentially as Section 2, ad seriatium up to 26, unless they are inconsistent with
the Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;"
that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of Parliament" and any and all references to the "President" and/or
"Acting President" shall be changed to read "Prime Minister."
President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12
which are hereby deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of government; provided,
however, that any and all references therein to "Congress," "Senate," "House of
"Member(s) of the House of Representatives" shall be changed to read as

Section 4. (1) There shall exist, upon the ratification of these amendments, an
interim Parliament which shall continue until the Members of the regular Parliament
shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the
incumbent Members of the Cabinet who are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament

until noon of the thirtieth day of June 2010. He shall also be a member of the
cabinet and shall head a ministry. He shall initially convene the interim Parliament
and shall preside over its sessions for the election of the interim Prime Minister and
until the Speaker shall have been elected by a majority vote of all the members of
the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until
noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,
from among the members of the interim Parliament, an interim Prime Minister, who
shall be elected by a majority vote of the members thereof. The interim Prime
Minister shall oversee the various ministries and shall perform such powers and
responsibilities as may be delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the members of
Parliament which shall be synchronized and held simultaneously with the election of
all local government officials. The duty elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime
Minister until the expiration of the term of the incumbent President and Vice
President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand
portion is the abstract of the proposed amendments, quoted as follows:
Abstract: Do you approve of the amendment of Article VI and VII of the 1987
Constitution, changing the form of government from the present bicameralpresidential to a unicameral-parliamentary system of government, in order to
achieve greater efficiency, simplicity and economy in government; and providing an
Article XVIII as Transitory Provisions for the orderly shift from one system to
another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners,
filed with the COMELEC a Petition for Initiative to Amend the Constitution.5 Five (5)
days thereafter, they filed an Amended Petition alleging that they are filing the
petition in their own behalf and together with some 6.3 million registered voters
who have affixed their signatures on the signature sheets attached thereto. They
claimed that the signatures of registered voters appearing on the signature sheets,
constituting at least twelve per cent (12%) of all registered voters in the country,
wherein each legislative district is represented by at least three per cent (3%) of all
the registered voters, were verified by their respective city or municipal election
officers.
Several organizations opposed the petition. 6
In a Resolution dated August 31, 2006, the COMELEC denied due course to the
petition, citing as basis this Court's ruling in Santiago, permanently enjoining it
"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."
Hence, the present petition for certiorari and mandamus praying that this Court set
aside the COMELEC Resolution and direct the latter tocomply with Section 4, Article
XVII of the Constitution, which provides:
Sec. 4 x x x

than ninety days after the certification by the Commission on Elections of the
sufficiency of the petition.
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the
petition of Mar-len Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray
that the COMELEC Chairman and Commissioners be required to show why they
should not be punished for contempt7 of court for disregarding the permanent
injunction issued by this Court in Santiago.
I
Respondent COMELEC did not act with grave abuse of discretion
Without necessarily brushing aside the other important issues, I believe the
resolution of the present petition hinges on this singular issue -- did the COMELEC
commit grave abuse of discretion when it denied Lambino, et al.'s petition for
initiative to amend the Constitution on the basis of this Court's Decision in Santiago
v. COMELEC?
In other words, regardless of how the other remaining issues are resolved, still, the
ultimate yardstick is the attendance of "grave abuse of discretion" on the part of the
COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only be considered as

committed in grave abuse of discretion when the same was performed in a
capricious or whimsical exercise of judgment. The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion or
personal hostility.8
The Resolution of respondent COMELEC denying due course to the petition for
initiative on the basis of a case (Santiago) decided by this Court cannot, in any way,
be characterized as "capricious or whimsical," "patent and gross," or "arbitrary and
despotic." On the contrary, it was the most prudent course to take. It must be
stressed that in Santiago, this Court permanently enjoins respondent COMELEC
"from entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a sufficient law shall have been validly enacted." It being a
fact that Congress has not enacted a sufficient law, respondent COMELEC has no
alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for

contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then
Associate Justice) in his Separate Opinion in the subsequent case of PIRMA vs.
COMELEC:9
x x x I cannot fault the Comelec for complying with the ruling even if it, too,
disagreed with said decision's ratio decidendi. Respondent Comelec was directly
enjoined by the highest Court of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of action
would have constituted defiance of the Court and would have been struck down as
grave abuse of discretion and contumacious disregard of this Court's supremacy as
the final arbiter of justiciable controversies.
It need not be emphasized that in our judicial hierarchy, this Court reigns supreme.
All courts, tribunals and administrative bodies exercising quasi-judicial functions are
obliged to conform to its pronouncements. It has the last word on what the law is; it
is the final arbiter of any justifiable controversy. In other words, there is only one
Supreme Court from whose decisions all other courts should take their bearings.10
As a warning to lower court judges who would not adhere to its rulings, this Court, in
People v. Santos,11 held:
Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding
cases, that the application of a doctrine promulgated by this Superiority is against
his way of reasoning, or against his conscience, he may state his opinion on the
matter, but rather than disposing of the case in accordance with his personal views
he must first think that it is his duty to apply the law as interpreted by the Highest
Court of the Land, and that any deviation from a principle laid down by the latter
would unavoidably cause, as a sequel, unnecessary inconveniences, delays and
expenses to the litigants. And if despite of what is here said, a Judge still believes
that he cannot follow Our rulings, then he has no other alternative than to place
himself in the position that he could properly avoid the duty of having to render
judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do
that.
Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the
petition of Lambino, et al. for it merely followed this Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that

its ruling in Santiago is the established doctrine and that the COMELEC did not
commit grave abuse of discretion in invoking it, thus:
PIRMA therein, it appearing that it only complied with the dispositions of this Court
in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10,
1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's

obedience and respect to the pronouncement of this Court in Santiago.
II
The doctrine of stare decisis
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of this Court or

eight (8) Justices (as against five (5) Justices) concurred in declaring R.A. No. 6735
an insufficient law. When the motion for reconsideration was denied via an equallydivided Court or a 6-6 vote, it does not mean that the Decision was overturned. It
only shows that the opposite view fails to muster enough votes to modify or reverse
the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and
Company Limited Partnership vs. Velasco,14 this Court ruled that the denial of a
motion or reconsideration signifies that the ground relied upon have been found,
upon due deliberation, to be without merit, as not being of sufficient weight to
warrant a modification of the judgment or final order.
With Santiago being the only impediment to the instant petition for initiative,
petitioners persistently stress that the doctrine of stare decisis does not bar its reexamination.
I am not convinced. The maxim stare decisis et non quieta movere translates "stand
by the decisions and disturb not what is settled."15 As used in our jurisprudence, it
means that "once this Court has laid down a principle of law as applicable to a
certain state of facts, it would adhere to that principle and apply it to all future
cases in which the facts are substantially the same as in the earlier controversy."16
There is considerable literature about whether this doctrine of stare decisis is a

good or bad one, but the doctrine is usually justified by arguments which focus on
the desirability of stability and certainty in the law and also by notions of justice and

fairness. Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process
stated:
It will not do to decide the same question one way between one set of litigants and
the opposite way between another. 'If a group of cases involves the same point, the
parties expect the same decision. It would be a gross injustice to decide alternate
cases on opposite principles. If a case was decided against me yesterday when I
was a defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to precedent must
then be the rule rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts.17
That the doctrine of stare decisis is related to justice and fairness may be
appreciated by considering the observation of American philosopher William K.
Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar individuals in
similar circumstances and one of them is treated better or worse than the other. In
this case, the cry of injustice rightly goes up against the responsible agent or group;
and unless that agent or group can establish that there is some relevant
dissimilarity after all between the individuals concerned and their circumstances, he
or they will be guilty as charged.18
Although the doctrine of stare decisis does not prevent re-examining and, if need
be, overruling prior decisions, "It is x x x a fundamental jurisprudential policy that
prior applicable precedent usually must be followed even though the case, if
considered anew, might be decided differently by the current justices. This policy x
x x 'is based on the assumption that certainty, predictability and stability in the law
are the major objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with reasonable assurance of the
governing rules of law.19 Accordingly, a party urging overruling a precedent faces a
rightly onerous task, the difficulty of which is roughly proportional to a number of
factors, including the age of the precedent, the nature and extent of public and
private reliance on it, and its consistency or inconsistency with other related rules of
law. Here, petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than
nine (9) years ago. During that span of time, the Filipino people, specifically the law
practitioners, law professors, law students, the entire judiciary and litigants have
recognized this Court's Decision as a precedent. In fact, the Santiago doctrine was

applied by this Court in the subsequent case of PIRMA. Even the legislature has
relied on said Decision, thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be overturned or set
aside merely on the basis of the petition of Lambino, et al. Indeed, this Court's
conclusion in Santiago that R.A. No. 6735 is incomplete, inadequate or wanting in
essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned remains a precedent and must be upheld.
III
The proposed constitutional changes constitute revisions and not mere
amendments
Article XVII of the 1987 Constitution lays down the means for its amendment and
revision. Thus:
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or
(2) A Constitutional Convention.

total number of registered votes, of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x.
(Emphasis supplied)
At the outset, it must be underscored that initiative and referendum, as means by

which the people can directly propose changes to the Constitution, were not
provided for in the 1935 and 1973 Constitutions. Thus, under these two (2)
Constitutions, there was no demand to draw the distinction between an amendment
and a revision, both being governed by a uniform process. This is not so under our
present Constitution. The distinction between an amendment and a revision
becomes crucial because only amendments are allowed under the system of
people's initiative. Revisions are within the exclusive domain of Congress, upon a
vote of three-fourths of all its members, or of a Constitutional Convention.

The deliberations of the 1986 Constitutional Commission is explicit that Section 2,
Article XVII covers only amendments, thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
pursuant to the mandate given us last night, we submitted this afternoon a
governing initiative. This is now covered by Section 2 of the complete committee
report. With the permission of the Members, may I quote Section 2:
proposal was suggested on the theory that this matter of initiative which came
Article on Amendment or Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the distinguished proponent of the

amendment yield to a few questions?
MR. DAVIDE: With pleasure, Madam President.
MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment

on line I refers to "amendments." Does it not cover the word "revision" as defined

"amendments" and "revision?"
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
"amendments" not "revision"
MR. MAAMBONG: Thank you.20
Considering that the initiative on the Constitution only permits amendments, it is

imperative to examine whether petitioners' proposed changes partake of the nature
of amendments, not revisions.
The petition for initiative filed with the COMELEC by Lambino, et al. sought to
amend the following provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6,
and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII
(The Executive Department). It further includes Article XVIII (Transitory Provisions)
for the purpose of insuring an orderly transition from the bicameral-presidential to a
unicameral-parliamentary form of government.
Succinctly, the proposals envision a change in the form of government, from

bicameral-presidential to unicameral-parliamentary; conversion of the present
Congress of the Philippines to an Interim National Assembly; change in the terms of
Members of Parliament; and the election of a Prime Minister who shall be vested
with executive power.
Petitioners contend that the proposed changes are in the nature of amendments,
hence, within the coverage of a "people's initiative."
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member
of the 1986 Constitutional Commission, characterized an amendment and a revision
to the Constitution as follows:

dangerous. In revision however, the guiding original intention and plan
document which have over-all implications for the document to determine how and
to what extent they should be altered.21
Obviously, both "revision" and amendment" connote change; any distinction

between the two must be based upon the degree of change contemplated. In Kelly
v. Laing,22 the Supreme Court of Michigan made the following comparison of the
two terms:
"Revision" and "amendment" have the common characteristics of working changes

in the charter, and are sometimes used in exactly the same sense but there is an
essential difference between them.
"Revision" implies a reexamination of the whole law and a redraft without obligation
to maintain the form, scheme, or structure of the old. As applied to fundamental
law, such as a constitution or charter, it suggests a convention to examine the
whole subject and to prepare and submit a new instrument whether the desired
changes from the old are few or many. Amendment implies continuance of the
general plan and purpose of the law, with corrections to better accomplish its
purpose. Basically, revision suggests fundamental change, while amendment is a
correction of detail.
Although there are some authorities which indicate that a change in a city's form of
government may be accomplished by a process of "amendment," the cases which
so hold seem to involve statutes which only distinguish between amendment and
totally new charters.23 However, as in Maine law, where the statute authorizing the
changes distinguishes between "charter amendment" and "charter revision," it has
been held that "(a) change in the form of government of a home rule city may be
made only by revision of the city charter, not by its amendment."24
In summary, it would seem that any major change in governmental form and
scheme would probably be interpreted as a "revision" and should be achieved
through the more thorough process of deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated
and specific provisions only, however, upon careful scrutiny, it becomes clear that
the proposed changes will alter the very structure of our government and create
multifarious ramifications. In other words, the proposed changes will have a
"domino effect" or, more appropriately, "ripple effect" on other provisions of the
Constitution.
At this juncture, it must be emphasized that the power reserved to the people to
effect changes in the Constitution includes the power to amend anysection in such a
manner that the proposed change, if approved, would "be complete within itself,
relate to one subject and not substantially affect any other section or article of the
Constitution or require further amendments to the Constitution to accomplish its
purpose."25 This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary form of government affects the

well-enshrined doctrine of separation of powers of government, embodied in our
Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a
Parliamentary form of government, the Executive Branch is to a certain degree,
dependent on the direct or indirect support of the Parliament, as expressed through
a "vote of confidence." To my mind, this doctrine of separation of powers is so
interwoven in the fabric of our Constitution, that any change affecting such doctrine
must necessarily be a revision.
In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:
It is thus clear that that a revision of the Constitution may be accomplished only
through ratification by the people of a revised constitution proposed by a
convention called for that purpose x x x. Consequently, if the scope of the proposed
initiative measure now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention. x x x.
Secondly, the shift from a bicameral to a unicameral form of government is not a

mere amendment, but is in actuality a revision, as set forth in Adams v. Gunter27:
The proposal here to amend Section I of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions of the
Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of

the states of the nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only radically change the
whole pattern of the government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on
government.
Thirdly, the proposed changes, on their face, signify revisions rather than
amendments, especially, with the inclusion of the following "omnibus provision":

to a unicameral-Parliamnetary form of government, there shall be a new Article
XVIII, entitled "Transitory Provisions" which shall read, as follows:
xxxxxxxxx
Section 3. Upon the expiration of the term of the incumbent President and VicePresident, with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987
Constitution which are hereby amended x x x x x x and all other Sections of Article
VII shall be retained and numbered sequentially as Section 2, ad seriatim up to 14,
unless they shall be inconsistent with Section 1 hereof, in which case they shall be
deemed amended so as to conform to a unicameral Parliamentary system of
government x x x x x x .
xxxxxxxxx
Section 4. (1) x x x
(3) Within forty-five days from ratification of these amendments, the Interim
Constitution, consistent with the principles of local autonomy, decentralization and
a strong bureaucracy.
The above provisions will necessarily result in a "ripple effect" on the other
provisions of the Constitution to make them conform to the qualities of unicameralparliamentary form of government. With one sweeping stroke, these proposed
provisions automatically revise some provisions of the Constitution. In McFadden,

the same practice was considered by the Court to be in the nature of substantial
revision, necessitating a constitutional convention. I quote the pertinent portion of
its ruling, thus:
There is in the measure itself, no attempt to enumerate the various and many
articles and sections of our present Constitution which would be affected, replaced
or repealed. It purports only to add one new article but its framers found it
necessary to include the omnibus provision (subdivision (7) of section XII) that "If
any section, subsection, sentence, clause or phrase of the constitution is in conflict
with any of the provisions of this article, such section, subsection, sentence, clause,
or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if
the scope of the proposed intitiative measure now before us is so broad that if such
measure become law a substantial revision of our present state Constitution would
be be effected, then the measure may not properly be submitted to the electorate
until and unless it is first agreed upon by a constitutional convention.28
Undoubtedly, the changes proposed by the petitioners are not mere amendments
which will only affect the Articles or Sections sought to be changed. Rather, they are
in the nature of revisions which will affect considerable portions of the Constitution
resulting in the alteration of our form of government. The proposed changes cannot
be taken in isolation since these are connected or "interlocked" with the other
provisions of our Constitution. Accordingly, it has been held that: "If the changes
attempted are so sweeping that it is necessary to include the provisions interlocking
them, then it is plain that the plan would constitute a recasting of the whole
Constitution and this, we think, it was intended to be accomplished only by a
convention under Section 2 which has not yet been disturbed."29
I therefore conclude that since the proposed changes partake of the nature of a
revision of the Constitution, then they cannot be the subject of an initiative. On this
matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple amendments? The answer, which
one can easily glean from the rather long deliberation on initiative and referendum
in the 1986 Constitutional Commission, is practicality. In other words, who is to
formulate the revision or how is it to be formulated? Revision, as concretely being
proposed now, is nothing less than a rebuilding of the Philippine constitutional
structure. Who were involved in formulating the structure? What debates ensued?
What records are there for future use in interpreting the provisions which may be
found to be unclear?

In a deliberative body like Congress or a Constitutional Convention, decisions are
reached after much purifying debate. And while the deliberations proceed, the
public has the opportunity to get involved. It is only after the work of an authorized
body has been completed that it is presented to the electorate for final judgment.
Careful debate is important because the electorate tends to accept what is
presented to it even sight unseen.30
IV
R.A. No. 6735 is insufficient to implement the People's initiative
Section 2, Article XVII of the 1987 Constitution reads:

ratification of this Constitution nor oftener than once every five years thereafter,
On its face, Section 2 is not a self-executory provision. This means that an enabling
law is imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in
order to breathe life into this constitutional provision. However, as previously
narrated, this Court struck the law in Santiago for being incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.
The passage of time has done nothing to change the applicability of R.A. No. 6735.
Congress neither amended it nor passed a new law to supply its deficiencies.
Notwithstanding so, this Court is being persuaded to take a 360-degree turn,

enumerating three (3) justifications why R.A. No. 6735 must be considered a
sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references to the right of people to
initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers
to use it as instrument to implement the people's initiative; and
3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the
legislative intent to use it as instrument to implement people's initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only
initiatives on national and local legislation. Its references to initiatives on the
Constitution are few, isolated and misplaced. Unlike in the initiatives on national
and local legislation, where R.A. No. 6735 provides a detailed, logical, and
exhaustive enumeration on their implementation,31 however, as regards initiative
on the Constitution, the law merely:
(a) mentions the word "Constitution" in Section 2;32
(b) defines "initiative on the Constitution" and includes it in the enumeration of the
three systems of initiative in Section 3;33
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on

the Constitution may be approved or rejected by the people;34
(d) reiterates the constitutional requirements as to the number of voters who should
sign the petition;35 and
(e) provides the date for the effectivity of the approved proposition.36
In other words, R.A. No. 6735 does not specify the procedure how initiative on the
Constitution may be accomplished. This is not the enabling law contemplated by the
Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc.,
since the promulgation of the Decision in Santiago, various bills have been
introduced in both Houses of Congress providing for a complete and adequate
process for people's initiative, such as:
Names, signatures and addresses of petitioners who shall be registered voters;
A statement of the provision of the Constitution or any part thereof sought to be

amended and the proposed amendment;
The manner of initiation - in a congressional district through a petition by any

individual, group, political party or coalition with members in the congressional
district;
The language used: the petition should be printed in English and translated in the
local language;
Signature stations to be provided for;
Provisions pertaining to the need and manner of posting, that is, after the
signatures shall have been verified by the Commission, the verified signatures shall
be posted for at least thirty days in the respective municipal and city halls where
the signatures were obtained;
Provisions pertaining to protests allowed any protest as to the authenticity of the

signatures to be filed with the COMELEC and decided within sixty (60) days from the
filing of said protest.
None of the above necessary details is provided by R.A. No. 6735, thus,
demonstrating its incompleteness and inadequacy.
V
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2,
Article XVII of the Constitution and R.A. No. 6735
I shall discuss the above issues together since they are interrelated and
inseparable. The determination of whether petitioners are proper parties to file the
petition for initiative in behalf of the alleged 6.3 million voters will require an
examination of whether they have complied with the provisions of Section 2, Article
XVII of the Constitution.
To reiterate, Section 2, Article XVII of the Constitution provides:

(Underscoring supplied)
The mandate of the above constitutional provisions is definite and categorical. For a
people's initiative to prosper, the following requisites must be present:
1. It is "the people" themselves who must "directly propose" "amendments" to the

Constitution;
2. The proposed amendments must be contained in "a petition of at least twelve per
centum of the total number of registered voters;" and
3. The required minimum of 12% of the total number of registered voters "must be
represented by at least three per centum of the registered voters" of "every
legislative district."
In this case, however, the above requisites are not present.
The petition for initiative was filed with the COMELEC by petitioners Lambino and
Aumentado, two registered voters. As shown in the "Verification/Certification with

Affidavit of Non-Forum Shopping" contained in their petition, they alleged under
oath that they have caused the preparation of the petition in their personal capacity
as registered voters "and as representatives" of the supposed 6.3 million registered
voters. This goes to show that the questioned petition was not initiated directly by
the 6.3 million people who allegedly comprised at least 12% of the total number of
registered voters, as required by Section 2. Moreover, nowhere in the petition itself
could be found the signatures of the 6.3 million registered voters. Only the
signatures of petitioners Lambino and Aumentado were affixed therein "as
representatives" of those 6.3 million people. Certainly, that is not the petition for
people's initiative contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority whatsoever to file the

petition "as representatives" of the alleged 6.3 million registered voters. Such act of
representation is constitutionally proscribed. To repeat, Section 2 strictly requires
that amendments to the Constitution shall be "directly proposed by the people
of registered voters." Obviously, the phrase "directly proposed by the people"
excludes any person acting as representative or agent of the 12% of the total
number of registered voters. The Constitution has bestowed upon the people the
right to directly propose amendments to the Constitution. Such right cannot be
usurped by anyone under the guise of being the people's representative. Simply
put, Section 2 does not recognize acts of representation. For it is only "the people"
(comprising the minimum of 12% of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the
registered voters therein) who are the proper parties to initiate a petition proposing
amendments to the Constitution. Verily, the petition filed with the COMELEC by
herein petitioners Lambino and Aumentado is not a people's initiative. Necessarily,
it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is
baseless and misleading. There is no people's voice to be heard and heeded as this
petition for initiative is not truly theirs, but only of petitioners Lambino and
Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that:
(1) "the validity of the exercise of the right of the sovereign people to amend the
Constitution and their will, as expressed by the fact that over six million registered
voters indicated their support of the Petition for initiative is a purely political

question;" and (2) "[t]he power to propose amendments to the Constitution is a
right explicitly bestowed upon the sovereign people. Hence, the determination by
the people to exercise their right to propose amendments under the system of
initiative is a sovereign act and falls squarely within the ambit of a political
question."
The "political question doctrine" was first enunciated by the US Supreme Court in
Luther v. Borden.37 Faced with the difficult question of whether the Supreme Court
was the appropriate institution to define the substantive content of republicanism,
the US Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that "the
sovereignty in every State resides in the people, as to how and whether they
exercised it, was under the circumstances of the case, a political question to be
settled by the political power." In other words, the responsibility of settling certain
constitutional questions was left to the legislative and executive branches of the
government.
The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode
Island. Due to increased migration brought about by the Industrial Revolution, the
urban population of Rhode Island increased. However, under the 1663 Royal Charter
which served as the State Constitution, voting rights were largely limited to
residents of the rural districts. This severe mal-apportionment of suffrage rights led
to the "Dorr Rebellion." Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage reformers invoked their
rights under the American Declaration of Independence to "alter or abolish" the
government and to institute a new one. The reformers proceeded to call for and
hold an extralegal constitutional convention, drafted a new State Constitution,
submitted the document for popular ratification, and held elections under it. The
State government, however, refused to cede power, leading to an anomalous
situation in that for a few months in 1842, there were two opposing state
governments contending for legitimacy and possession of state of offices.
The Rhode Island militia, under the authority of martial law, entered and searched
the house of Martin Luther, a Dorr supporter. He brought suit against Luther Borden,
a militiaman. Before the US Supreme Court, Luther's counsel argued that since the
State's archaic Constitution prevented a fair and peaceful address of grievances
through democratic processes, the people of Rhode Island had instead chosen to
exercise their inherent right in popular sovereignty of replacing what they saw as an
oppressive government. The US Supreme Court deemed the controversy as nonjusticiable and inappropriate for judicial resolution.
In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political
thicket" to describe situations where Federal courts should not intervene in political

questions which they have neither the competence nor the commission to decide. In
Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment
of legislative districts in Illinois "as a political question and that the invalidation of
the districts might, in requiring statewide elections, create an evil greater than that
sought to be remedied."
While this Court has adopted the use of Frankfurter's "political thicket," nonetheless,
it has sought to come up with a definition of the term "political question." Thus, in
Vera v. Avelino,39 this Court ruled that properly, political questions are "those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government." In Taada and
Macapagal v. Cuenco,40 the Court held that the term political question connotes, in
legal parlance, what it means in ordinary parlance, namely, a question of policy. It is
concerned with issues dependent upon the wisdom, not legality, of a particular
measure.
In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker
v. Carr42 in determining whether a question before it is political, rather than judicial
in nature, to wit:
1) there is a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or
2) there is a lack of judicially discoverable and manageable standards for resolving

it; or
3) there is the sheer impossibility of deciding the matter without an initial policy
determination of a kind clearly for non-judicial discretion; or
4) there is the sheer impossibility of the Court's undertaking an independent

resolution without expressing lack of respect due the coordinate branches of
government; or
5) there is an unusual need for unquestioning adherence to a political decision

already made; or

6) there exists the potentiality of embarrassment arising from multifarious
pronouncements by various departments on one question.
None of the foregoing standards is present in the issues raised before this Court.
Accordingly, the issues are justiciable. What is at stake here is the legality and not
the wisdom of the act complained of.
Moreover, even assuming arguendo that the issues raised before this Court are
political in nature, it is not precluded from resolving them under its expanded
jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following
Daza v. Singson.43 As pointed out in Marcos v. Manglapus,44 the present
Constitution limits resort to the political question doctrine and broadens the scope
of judicial power which the Court, under previous charters, would have normally and
ordinarily left to the political departments to decide.
CONCLUSION
In fine, considering the political scenario in our country today, it is my view that the
so-called people's initiative to amend our Constitution from bicameral-presidential
to unicameral-parliamentary is actually not an initiative of the people, but an
initiative of some of our politicians. It has not been shown by petitioners, during the
oral arguments in this case, that the 6.3 million registered voters who affixed their
signatures understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed amendments
were not explained to all those registered voters. Indeed, there will be no means of
knowing, to the point of judicial certainty, whether they really understood what
petitioners and their group asked them to sign.
Let us not repeat the mistake committed by this Court in Javellana v. The Executive
Secretary.45 The Court then ruled that "This being the vote of the majority, there is
no further judicial obstacle to the new Constitution being considered in force and
effect," although it had notice that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified by the people in accordance with
the 1935 Constitution. The Court concluded, among others, that the viva voce
voting in the Citizens' Assemblies "was and is null and void ab initio." That was
during martial law when perhaps majority of the justices were scared of the dictator.
Luckily at present, we are not under a martial law regime. There is, therefore, no
reason why this Court should allow itself to be used as a legitimizing authority by
the so-called people's initiative for those who want to perpetuate themselves in
power.
At this point, I can say without fear that there is nothing wrong with our present
government structure. Consequent1y, we must not change it. America has a
presidential type of government. Yet, it thrives ideally and has become a super
power. It is then safe to conclude that what we should change are some of the
people running the government, NOT the SYSTEM.
According to petitioners, the proposed amendment would effect a more efficient,

more economical and more responsive government.
Is there hope that a new breed of politicians, more qualified and capable, may be
elected as members and leaders of the unicameral-parliament? Or will the present
members of the Lower House continue to hold their respective positions with
limitless terms?
Will the new government be more responsive to the needs of the poor and the
marginalized? Will it be able to provide homes for the homeless, food for the
hungry, jobs for the jobless and protection for the weak?
This is a defining moment in our history. The issue posed before us is crucial with
transcendental significance. And history will judge us on how we resolve this issue
shall we allow the revision of our Constitution, of which we are duty bound to guard
and revere, on the basis of a doubtful people's initiative?
Amending the Constitution involving a change of government system or structure is

a herculean task affecting the entire Filipino people and the future generations. Let
us, therefore, entrust this duty to more knowledgeable people elected as members
of a Constitutional Convention.
Yes, the voice of the people is the voice of God. But under the circumstances in this
case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the
petition in G.R. No. 174299.
ANGELINA SANDOVAL-GUTIERREZ

Associate Justice
____________________
EN BANC
G.R. No. 174153

VOTERS, petitioners,
vs.
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG,
petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS,
SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE,
respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE CONCURRING OPINION
CALLEJO, SR., J.:
I am convinced beyond cavil that the respondent Commission on Elections

(COMELEC) did not commit an abuse of its discretion in dismissing the amended
petition before it. The proposals of petitioners incorporated in said amended petition

are for the revision of the 1987 Constitution. Further, the amended petition before
the respondent COMELEC is insufficient in substance.
The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with
the COMELEC a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO
THE 1987 CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A
BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY
AMENDING ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The
case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners filed an
amended petition. For brevity, it is referred to as the petition for initiative.
Petitioners alleged therein, inter alia, that they filed their petition in their own behalf
and together with those who have affixed their signatures to the signature sheets
appended thereto who are Filipino citizens, residents and registered voters of the
Philippines, and they constitute at least twelve percent (12%) of all the registered
voters in the country, wherein each legislative district is represented by at least
three percent (3%) of all the registered voters therein.
Petitioners further alleged therein that the filing of the petition for initiative is based
on their constitutional right to propose amendments to the 1987 Constitution by
way of people's initiative, as recognized in Section 2, Article XVII thereof, which
provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right."
According to petitioners, while the above provision states that "(T)he Congress shall
provide for the implementation of the exercise of this right," the provisions of
Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735,1 are sufficient

enabling details for the people's exercise of the power. The said sections of RA 6735
state:
Sec. 5. Requirements. (a) To exercise the power x x x
(b) 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
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or

c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.
xxxx
Sec. 7. Verification of Signatures. The Election Registrar shall verify the signatures
on the basis of the registry list of voters, voters' affidavits and voters identification
cards used in the immediately preceding election.
They also alleged that the COMELEC has the authority, mandate and obligation to
give due course to the petition for initiative, in compliance with the constitutional
directive for the COMELEC to "enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and recall."2
Petitioners incorporated in their petition for initiative the changes they proposed to
be incorporated in the 1987 Constitution and prayed that the COMELEC issue an
order:
1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the Petition in Filipino and English at least twice in
newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days
after the Certification by this Honorable Commission of the sufficiency of this
Petition, to allow the Filipino people to express their sovereign will on the
proposition.
Petitioners pray for such other reliefs deemed just and equitable in the premises.
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed Resolution denying
due course and dismissing the petition for initiative. The COMELEC ruled that:
We agree with the petitioners that this Commission has the solemn Constitutional
duty to enforce and administer all laws and regulations relative to the conduct of, as
in this case, initiative.
This mandate, however, should be read in relation to the other provisions of the
Constitution particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:
"Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the

people through initiative, upon a petition of at least twelve per centum of the total
by at least three per centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of this right."
The aforequoted provision of the Constitution being a non-self-executory provision

needed an enabling law for its implementation. Thus, in order to breathe life into
the constitutional right of the people under a system of initiative to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or
resolution, Congress enacted RA 6735.
However, the Supreme Court, in the landmark case of Santiago v. Commission on

Elections struck down the said law for being incomplete, inadequate, or wanting in
Constitution is concerned
The Supreme Court, likewise, declared that this Commission should be permanently
Thus, even if the signatures in the instant Petition appear to meet the required
minimum per centum of the total number of registered voters, of which every
legislative district is represented by at least three per centum of the registered
voters therein, still the Petition cannot be given due course since the Supreme Court
categorically declared RA 6735 as inadequate to cover the system of initiative on
This Commission is not unmindful of the transcendental importance of the right of

the people under a system of initiative. However, neither can we turn a blind eye to
the pronouncement of the High Court that in the absence of a valid enabling law,
this right of the people remains nothing but an "empty right," and that this
Commission is permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition for certiorari and
mandamus under Rule 65 of the Rules of Court.
The Petitioners' Case
In support of their petition, petitioners alleged, inter alia, that:
I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO
THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19 MARCH
1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME COURT EN
BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10
JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735
AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN STANDARD.
II.
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND
EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND
AUTHORITY FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS
TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING THE WILL OF
THE PEOPLE.
A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT
PETITION FOR INITIATIVE FILED BY THE PETITIONERS.
1.
THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER
TO PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING
VIBRANT LIFE TO THIS CONSTITUTIONAL PROVISION
2.
PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF

THE PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS
BEEN INVARIABLY UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL

QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE

DULY VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO
PERFORM THIS SACRED EXERCISE OF THEIR SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT

PETITION FOR INITIATIVE FILED BY THE PETITIONERS
C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO
THE DELFIN PETITION.
1.
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN

THE BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR

PERFORM A DUTY MANDATED BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR

PLEBISCITE.3
Petitioners Failed to Allege and Demonstrate All the Essential

Facts To Establish the Right to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and

pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following requirements are set out in
the petition and established:
(1) the writ is directed against a tribunal, a board or any officer exercising judicial or
quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary
course of law. x x x4
The Court has invariably defined "grave abuse of discretion," thus:
By grave abuse of discretion is meant such capricious and whimsical exercise of

judgment as is equivalent to lack of jurisdiction, and it must be shown that the
discretion was exercised arbitrarily or despotically. For certiorari to lie, there must
be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the
judicial prerogative in accordance with centuries of both civil law and common law
traditions.5
There is thus grave abuse of discretion on the part of the COMELEC when it acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment
amounting to lack of jurisdiction. Mere abuse of discretion is not enough.6 The only
question involved is jurisdiction, either the lack or excess thereof, and abuse of
discretion warrants the issuance of the extraordinary remedy of certiorari only when
the same is grave, as when the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a
remedy designed for the correction of errors of jurisdiction and not errors of
judgment.7 An error of judgment is one in which the court may commit in the
exercise of its jurisdiction, which error is reversible only by an appeal.8
In the present case, it appears from the assailed Resolution of the COMELEC that it
denied the petition for initiative solely in obedience to the mandate of this Court in

Santiago v. Commission on Elections.9 In said case, the Court En Banc permanently
enjoined the COMELEC from entertaining or taking cognizance of any petition for
validly enacted to provide for the implementation of the system. When the
COMELEC denied the petition for initiative, there was as yet no valid law enacted by
Congress to provide for the implementation of the system.
It is a travesty for the Court to declare the act of the COMELEC in denying due
course to the petition for initiative as "capricious, despotic, oppressive or whimsical
exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the
COMELEC merely followed or applied, as it ought to do, the Court's ruling in
Santiago to the effect that Section 2, Article XVII of the Constitution on the system
of initiative is a non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to be
"incomplete, inadequate, or wanting in essential terms and conditions" to
implement the constitutional provision on initiative. Consequently, the COMELEC
was "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." The decision
of the Court En Banc interpreting RA 6735 forms part of the legal system of the
Philippines.10 And no doctrine or principle laid down by the Court En Banc may be
modified or reversed except by the Court En Banc,11 certainly not by the COMELEC.
Until the Court En Banc modifies or reverses its decision, the COMELEC is bound to
follow the same.12 As succinctly held in Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is considered as finally settled.
The inferior court is bound by the judgment or decree as the law of the case, and
must carry it into execution according to the mandate. The inferior court cannot
vary it, or judicially examine it for any other purpose than execution. It can give no
other or further relief as to any matter decided by the Supreme Court even where
there is error apparent; or in any manner intermeddle with it further than to execute
the mandate and settle such matters as have been remanded, not adjudicated by
the Supreme Court.
The principles above stated are, we think, conclusively established by the authority
of adjudged cases. And any further departure from them would inevitably mar the
harmony of the whole judiciary system, bring its parts into conflict, and produce
therein disorganization, disorder, and incalculable mischief and confusion. Besides,
any rule allowing the inferior courts to disregard the adjudications of the Supreme
Court, or to refuse or omit to carry them into execution would be repugnant to the
principles established by the constitution, and therefore void.14

At this point, it is well to recall the factual context of Santiago as well as the
pronouncement made by the Court therein. Like petitioners in the instant case, in
Santiago, Atty. Jesus Delfin, the People's Initiative for Reforms, Modernization and
Action (PIRMA), et al., invoked Section 2, Article XVII of the Constitution as they filed
with the COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of
Elective Officials, By People's Initiative" (the Delfin petition). They asked the
COMELEC to issue an order fixing the time and date for signature gathering all over
the country; causing the necessary publications of said order and their petition in
newspapers of general and local circulation and instructing municipal election
registrars in all regions all over the country and to assist petitioners in establishing
signing stations. Acting thereon, the COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court a petition for
prohibition to enjoin the COMELEC from implementing its order. The Court, speaking
through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it
declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions

insofar as initiative on amendments to the Constitution is concerned";
2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and

regulations on the conduct of initiative on amendments to the Constitution because
the COMELEC is without authority to promulgate the 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; and
3. The Delfin petition insufficient as it did not contain the required number of
signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be permanently

enacted to provide for the implementation of the system." The dispositive portion of
the decision reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 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

d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition

(UND-96-037).
The Temporary Restraining Order issued on December 18, 1996 is made permanent
respondents.16
The Court reiterated its ruling in Santiago in another petition which was filed with
the Court by PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties
in Santiago) docketed as PIRMA v. Commission on Elections.17 The said petitioners,
undaunted by Santiago and claiming to have gathered 5,793,213 signatures, filed a
petition with the COMELEC praying, inter alia, that COMELEC officers be ordered to
verify all the signatures collected in behalf of the petition and, after due hearing,
that it (COMELEC) declare the petition sufficient for the purpose of scheduling a
plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA
petition proposed to submit to the people in a plebiscite the amendment to the
Constitution on the lifting of the term limits of elected officials.
The opinion of the minority that there was no doctrine enunciated by the Court in
PIRMA has no basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed
the PIRMA petition citing the permanent restraining order issued against it by the
Court in Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to
the Court alleging grave abuse of discretion on the part of the COMELEC in refusing
to exercise jurisdiction over, and thereby dismissing, their petition for initiative to
amend the Constitution.
The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and
the spouses Albert Pedrosa. The Court declared that the COMELEC merely complied
with the dispositions in the decision of the Court in Santiago and, hence, cannot be

held to have committed a grave abuse of its discretion in dismissing the petition
before it:
Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
The Court next considered the question of whether there was need to resolve the
second issue posed by the petitioners, namely, that the Court re-examine its ruling
as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of
the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ.,
voted that there was no need to take it up. Vitug, J., agreed that there was no need
for re-examination of said second issue since the case a bar is not the proper
vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno,
Francisco, Hermosisima and Panganiban, JJ., opined that there was need for such a
re-examination. x x x
WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)
In the present case, the Office of the Solicitor General (OSG) takes the side of
petitioners and argues that the COMELEC should not have applied the ruling in
Santiago to the petition for initiative because the permanent injunction therein
referred only to the Delfin petition. The OSG buttresses this argument by pointing
out that the Temporary Restraining Order dated December 18, 1996 that was made
permanent in the dispositive portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body of the Court's
decision in Santiago is futile. It bears stressing that the dispositive portion must not
be read separately but in connection with the other portions of the decision of which
it forms a part. To get to the true intent and meaning of a decision, no specific
portion thereof should be resorted to but the same must be considered in its
entirety. Hence, a resolution or ruling may and does appear in other parts of the
decision and not merely in the fallo thereof.19
The pronouncement in the body of the decision in Santiago permanently enjoining

the COMELEC "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" is thus as much a part of

the Court's decision as its dispositive portion. The ruling of this Court is of the
nature of an in rem judgment barring any and all Filipinos from filing a petition for
validly enacted. Clearly, the COMELEC, in denying due course to the present petition
for initiative on amendments to the Constitution conformably with the Court's ruling
in Santiago did not commit grave abuse of discretion. On the contrary, its actuation
is in keeping with the salutary principle of hierarchy of courts. For the Court to find
the COMELEC to have abused its discretion when it dismissed the amended petition
based on the ruling of this Court in Santiago would be sheer judicial apostasy.
As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from
whose decisions all other courts should take their bearings."20 This truism applies
with equal force to the COMELEC as a quasi-judicial body for, after all, judicial
decisions applying or interpreting laws or the Constitution "assume the same
authority as the statute itself and, until authoritatively abandoned, necessarily
become, to the extent that they are applicable, the criteria which must control the
actuations not only of those called upon to abide thereby but also of those duty
bound to enforce obedience thereto."21
Petitioners Cannot Ascribe

Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of the Court, not
the opinion of the minority, prevails. As a corollary, the decision of the majority
cannot be modified or reversed by the minority of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue, albeit

unconvincingly, that the Court's declaration therein on the inadequacy,
incompleteness and insufficiency of RA 6735 to implement the system of initiative
to propose constitutional amendments did not constitute the majority opinion. This
contention is utterly baseless.
Santiago was concurred in, without any reservation, by eight Justices,22 or the
majority of the members of the Court, who actually took part in the deliberations
thereon. On the other hand, five Justices,23 while voting for the dismissal of the
Delfin petition on the ground of insufficiency, dissented from the majority opinion as

they maintained the view that RA 6735 was sufficient to implement the system of
initiative.
Given that a clear majority of the members of the Court, eight Justices, concurred in
the decision in Santiago, the pronouncement therein that RA 6735 is "incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned" constitutes a definitive ruling on the
matter.
In the Resolution dated June 10, 1997, the motions for reconsideration of the
Santiago decision were denied with finality as only six Justices, or less than the
majority, voted to grant the same. The Resolution expressly stated that the motion
for reconsideration failed "to persuade the requisite majority of the Court to modify
or reverse the Decision of 19 March 1977."24 In fine, the pronouncement in
Santiago as embodied in the Decision of March 19, 1997 remains the definitive
ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue
posed by them and to re-examine its ruling as regards RA 6735. By a vote of seven
members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug,
the Court voted that there was no need to resolve the issue. Five members of the
Court opined that there was a need for the re-examination of said ruling. Thus, the
pronouncement of the Court in Santiago remains the law of the case and binding on
petitioners.
If, as now claimed by the minorty, there was no doctrine enunciated by the Court in
Santiago, the Court should have resolved to set aside its original resolution
dismissing the petition and to grant the motion for reconsideration and the petition.
But the Court did not. The Court positively and unequivocally declared that the
COMELEC merely followed the ruling of the Court in Santiago in dismissing the
petition before it. No less than Senior Justice Reynato S. Puno concurred with the
resolution of the Court. It behooved Justice Puno to dissent from the ruling of the
Court on the motion for reconsideration of petitioners precisely on the ground that
there was no doctrine enunciated by the Court in Santiago. He did not. Neither did
Chief Justice Artemio V. Panganiban, who was a member of the Court.
That RA 6735 has failed to validly implement the people's right to directly propose
constitutional amendments through the system of initiative had already been
conclusively settled in Santiago as well as in PIRMA. Heeding these decisions,
several lawmakers, including no less than Solicitor General Antonio Eduardo
Nachura when he was then a member of the House of Representatives,25 have filed

separate bills to implement the system of initiative under Section 2, Article XVII of
the Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the
Senate, the three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing
for People's Initiative to Amend the Constitution introduced by Senator Luisa "Loi" P.
Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing for People's Initiative
to Amend the Constitution introduced by Senator Miriam Defensor Santiago; and
Senate Bill No. 2247 entitled An Act Providing for a System of People's Initiative to
Propose Amendments to the Constitution introduced by Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending bills: House Bill
No. 05281 filed by Representative Carmen Cari, House Bill No. 05017 filed by
Representative Imee Marcos, House Bill No. 05025 filed by Representative Roberto
Cajes, and House Bill No. 05026 filed by Representative Edgardo Chatto. These
House bills are similarly entitled An Act Providing for People's Initiative to Amend
the Constitution.
The respective explanatory notes of the said Senate and House bills uniformly
recognize that there is, to date, no law to govern the process by which
constitutional amendments are introduced by the people directly through the
system of initiative. Ten (10) years after Santiago and absent the occurrence of any
compelling supervening event, i.e., passage of a law to implement the system of
initiative under Section 2, Article XVII of the Constitution, that would warrant the reexamination of the ruling therein, it behooves the Court to apply to the present case
the salutary and well-recognized doctrine of stare decisis. As earlier shown,
Congress and other government agencies have, in fact, abided by Santiago. The
Court can do no less with respect to its own ruling.
Contrary to the stance taken by petitioners, the validity or constitutionality of a law

cannot be made to depend on the individual opinions of the members who compose
it the Supreme Court, as an institution, has already determined RA 6735 to be
initiative on amendments to the Constitution is concerned" and therefore the same
remains to be so regardless of any change in the Court's composition.26 Indeed, it
is vital that there be stability in the courts in adhering to decisions deliberately
made after ample consideration. Parties should not be encouraged to seek reexamination of determined principles and speculate on fluctuation of the law with
every change in the expounders of it.27
Proposals to Revise the Constitution,

As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments
Even granting arguendo the Court, in the present case, abandons its
pronouncement in Santiago and declares RA 6735, taken together with other extant
laws, sufficient to implement the system of initiative, still, the amended petition for
initiative cannot prosper. Despite the denomination of their petition, the proposals
of petitioners to change the form of government from the present bicameralpresidential to a unicameral-parliamentary system of government are actually for
the revision of the Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:
"Section 1. (1) The legislative and executive powers shall be vested in a unicameral
"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at

the parliamentary districts."

"Section 1. There shall be a President who shall be the Head of State. The executive
of government.

XVIII, entitled "Transitory Provisions," which shall read as follows:
two thirds of all the members of the interim parliament.,
Section 2. "Upon the expiration of the term of the incumbent President and Vice
Representatives" and "House of Congress," "Senator[s] or "Member[s] of the House
of Representatives" and "House of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of the House of Representatives"
shall be changed to read as "Member[s] of Parliament" and any and all references to
the "President" and or "Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President and Vice

Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and
however, that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of Congress," "Senator[s]" or
"Member[s] of the House of Parliament" and any and all references to the
"President" and of "Acting President" shall be changed to read "Prime Minister."

and shall preside over its session for the election of the interim Prime Minister and
strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,

of all local government officials. [Thereafter, the Vice-President, as Member of
Parliament, shall immediately convene the Parliament and shall initially preside over
its session for the purpose of electing the Prime Minister, who shall be elected by a
majority vote of all its members, from among themselves.] The duly-elected Prime
Minister shall continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.28
Petitioners claim that the required number of signatures of registered voters have
been complied with, i.e., the signatories to the petition constitute twelve percent
(12%) of all the registered voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered voters therein.
Certifications allegedly executed by the respective COMELEC Election Registrars of
each municipality and city verifying these signatures were attached to the petition
for initiative. The verification was allegedly done on the basis of the list of registered
voters contained in the official COMELEC list used in the immediately preceding
election.
The proposition, as formulated by petitioners, to be submitted to the Filipino people

in a plebiscite to be called for the said purpose reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?29
According to petitioners, the proposed amendment of Articles VI and VII would effect
a more efficient, more economical and more responsive government. The
parliamentary system would allegedly ensure harmony between the legislative and
executive branches of government, promote greater consensus, and provide faster
and more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 2. Amendments to this Constitution may likewise be directly proposed by

It can be readily gleaned that the above provisions set forth different modes and
procedures for proposals for the amendment and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution
may be proposed by
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the Constitution may be likewise

directly proposed by the people through initiative.
The framers of the Constitution deliberately adopted the terms "amendment" and
"revision" and provided for their respective modes and procedures for effecting
changes of the Constitution fully cognizant of the distinction between the two
concepts. Commissioner Jose E. Suarez, the Chairman of the Committee on
Amendments and Transitory Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is, "amendment."
However, the Committee finally agreed to use the terms "amendment" or
"revision" when our attention was called by the honorable Vice-President to the
substantial difference in the connotation and significance between the said terms.
As a result of our research, we came up with the observations made in the famous
or notorious Javellana doctrine, particularly the decision rendered by Honorable
Justice Makasiar, wherein he made the following distinction between "amendment"
and "revision" of an existing Constitution: "Revision" may involve a rewriting of the
whole Constitution. On the other hand, the act of amending a constitution envisages
a change of specific provisions only. The intention of an act to amend is not the
change of the entire Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the
times.
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a

completely new fundamental Charter embodying new political, social and economic
concepts.
So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to
the new Constitution.30
Further, the framers of the Constitution deliberately omitted the term "revision" in
Section 2, Article XVII of the Constitution because it was their intention to reserve
the power to propose a revision of the Constitution to Congress or the constitutional
convention. Stated in another manner, it was their manifest intent that revision
thereof shall not be undertaken through the system of initiative. Instead, the
revision of the Constitution shall be done either by Congress or by a constitutional
convention.
It is significant to note that, originally, the provision on the system of initiative was
included in Section 1 of the draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions. The original draft provided:
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
However, after deliberations and interpellations, the members of the Commission

agreed to remove the provision on the system of initiative from Section 1 and,
instead, put it under a separate provision, Section 2. It was explained that the
removal of the provision on initiative from the other "traditional modes" of changing
the Constitution was precisely to limit the former (system of initiative) to
amendments to the Constitution. It was emphasized that the system of initiative
should not extend to revision.
MR. SUAREZ. Thank you, Madam President.
pursuant to the mandate given to us last night, we submitted this afternoon a
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:
proposal was suggested on the theory that this matter of initiative, which came
Article on Amendment or Revision. x x x32
The intention to exclude "revision" of the Constitution as a mode that may be

undertaken through the system of initiative was reiterated and made clear by
Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino:
MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section
4, except that in Section 4, as it is presently drafted, there is no take-off date for the
60-day and 90-day periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing
amendments to the Constitution which would further require the process of
submitting it in a plebiscite, in which case it is not self-executing.
MR. SUAREZ. No, not unless we settle and determine the take-off period.

MR SUAREZ. We would be amenable except that, as we clarified a while ago, this

sense conveyed by the Committee.
whereas, the process of initiation to amend, which is given to the public, would only
MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the
clarification with respect to the observation of Commissioner Regalado Maambong:

on line 1 refers to "amendments." Does it not cover the word "revision" as defined
"amendments" not "revision."34
After several amendments, the Commission voted in favor of the following wording
of Section 2:
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY

THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT
OF THE TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF

THE EXERCISE OF THIS RIGHT.
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII

The final text of Article XVII on Amendments or Revisions clearly makes a

substantial differentiation not only between the two terms but also between two
procedures and their respective fields of application. Ineluctably, the system of
initiative under Section 2, Article XVII as a mode of effecting changes in the
Constitution is strictly limited to amendments not to a revision thereof.
As opined earlier, the framers of the Constitution, in providing for "amendment" and
"revision" as different modes of changing the fundamental law, were cognizant of
the distinction between the two terms. They particularly relied on the distinction
made by Justice Felix Antonio in his concurring opinion in Javellana v. Executive
Secretary,35 the controversial decision which gave imprimatur to the 1973
Constitution of former President Ferdinand E. Marcos, as follows:
There is clearly a distinction between revision and amendment of an existing

constitution. Revision may involve a rewriting of the whole constitution. The act of
amending a constitution, on the other hand, envisages a change of only specific
provisions. The intention of an act to amend is not the change of the entire
constitution, but only the improvement of specific parts of the existing constitution
of the addition of provisions deemed essential as a consequence of new conditions
or the elimination of parts already considered obsolete or unresponsive to the needs
of the times. The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental charter embodying new political,
social and economic concepts.36
Other elucidation on the distinction between "amendment" and "revision" is

enlightening. For example, Dean Vicente G. Sinco, an eminent authority on political
law, distinguished the two terms in this manner:
Strictly speaking, the act of revising a constitution involves alterations of different

provisions. But whatever results the revisions may produce, the factor that
one.
intention rather is to improve the specific parts of the existing constitution or to add
to it provisions deemed essential on account of changed conditions or to suppress
portions of it that seemed obsolete, or dangerous, or misleading in their effect.37
In the United States, the Supreme Court of Georgia in Wheeler v. Board of

Trustees38 had the occasion to make the distinction between the two terms with
respect to Ga.L. 1945, an instrument which "amended" the 1877 Constitution of
Georgia. It explained the term "amendment:"
"Amendment" of a statute implies its survival and not destruction. It repeals or

changes some provision, or adds something thereto. A law is amended when it is in
whole or in part permitted to remain, and something is added to or taken from it, or
it is in some way changed or altered to make it more complete or perfect, or to fit it
the better to accomplish the object or purpose for which it was made, or some other
object or purpose.39
On the other hand, the term "revision" was explained by the said US appellate
court:
x x x When a house is completely demolished and another is erected on the same

location, do you have a changed, repaired and altered house, or do you have a new
house? Some of the materials contained in the old house may be used again, some
of the rooms may be constructed the same, but this does not alter the fact that you
have altogether another or a new house. We conclude that the instrument as
contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new
constitution.40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission,
expounded on the distinction between the two terms thus:


dangerous. In revision, however, the guiding original intention and plan contemplate
a re-examination of the entire document or of provisions of the document (which
have overall implications for the entire document or for the fundamental
philosophical underpinnings of the document) to determine how and to what
extent it should be altered. Thus, for instance, a switch from the presidential system
to a parliamentary system would be a revision because of its overall impact on the
entire constitutional structure. So would a switch from a bicameral system to a
unicameral system because of its effect on other important provisions of the
Constitution.
It is thus clear that what distinguishes revision from amendment is not the quantum
of change in the document. Rather, it is the fundamental qualitative alteration that
effects revision. Hence, I must reject the puerile argument that the use of the plural
form of "amendments" means that a revision can be achieved by the introduction of
a multiplicity of amendments!41
Given that revision necessarily entails a more complex, substantial and far-reaching
effects on the Constitution, the framers thereof wisely withheld the said mode from
the system of initiative. It should be recalled that it took the framers of the present
Constitution four months from June 2, 1986 until October 15, 1986 to come up with
the draft Constitution which, as described by the venerable Justice Cecilia Muoz
Palma, the President of the Constitutional Commission of 1986, "gradually and
painstakingly took shape through the crucible of sustained sometimes passionate
and often exhilarating debates that intersected all dimensions of the national
life."42
Evidently, the framers of the Constitution believed that a revision thereof should, in
like manner, be a product of the same extensive and intensive study and debates.
Consequently, while providing for a system of initiative where the people would
directly propose amendments to the Constitution, they entrusted the formidable
task of its revision to a deliberative body, the Congress or Constituent Assembly.
The Constitution is the fundamental law of the state, containing the principles upon
which the government is founded, and regulating the division of sovereign powers,
directing to what persons each of those powers is to be confided and the manner in
which it is to be exercised.43 The Philippines has followed the American
constitutional legal system in the sense that the term constitution is given a more
restricted meaning, i.e., as a written organic instrument, under which governmental
powers are both conferred and circumscribed.44

The Constitution received its force from the express will of the people. An
overwhelming 16,622,111, out of 21,785,216 votes cast during the plebiscite, or
76.30% ratified the present Constitution on February 2, 1987.45 In expressing that
will, the Filipino people have incorporated therein the method and manner by which
the same can be amended and revised, and when the electorate have incorporated
into the fundamental law the particular manner in which the same may be altered
or changed, then any course which disregards that express will is a direct violation
of the fundamental law.46
Further, these provisions having been incorporated in the Constitution, where the
validity of a constitutional amendment or revision depends upon whether such
provisions have been complied with, such question presents for consideration and
determination a judicial question, and the courts are the only tribunals vested with
power under the Constitution to determine such question.47
Earlier, it was mentioned that Article XVII, by the use of the terms "amendment"
and "revision," clearly makes a differentiation not only between the two terms but
also between two procedures and their respective fields of application. On this
point, the case of McFadden v. Jordan48 is instructive. In that case, a "purported
initiative amendment" (referred to as the proposed measure) to the State
Constitution of California, then being proposed to be submitted to the electors for
ratification, was sought to be enjoined. The proposed measure, denominated as
"California Bill of Rights," comprised a single new article with some 208 subsections
which would repeal or substantially alter at least 15 of the 25 articles of the
California State Constitution and add at least four new topics. Among the likely
effects of the proposed measure were to curtail legislative and judicial functions,
legalize gaming, completely revise the taxation system and reduce the powers of
cities, counties and courts. The proposed measure also included diverse matters as
ministers, mines, civic centers, liquor control and naturopaths.
The Supreme Court of California enjoined the submission of the proposed measure
to the electors for ratification because it was not an "amendment" but a "revision"
which could only be proposed by a convention. It held that from an examination of
the proposed measure itself, considered in relation to the terms of the California
State Constitution, it was clear that the proposed initiative enactment amounted
substantially to an attempted revision, rather than amendment, thereof; and that
inasmuch as the California State Constitution specifies (Article XVIII 2 thereof) that
it may be revised by means of constitutional convention but does not provide for
revision by initiative measure, the submission of the proposed measure to the
electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the
differentiation required (between amendment and revision) is not merely between
two words; more accurately it is between two procedures and between their
respective fields of application. Each procedure, if we follow elementary principles
of statutory construction, must be understood to have a substantial field of
application, not to be a mere alternative procedure in the same field. Each of the
two words, then, must be understood to denote, respectively, not only a procedure
but also a field of application appropriate to its procedure.49
Provisions regulating the time and mode of effecting organic changes are in the
nature of safety-valves they must not be so adjusted as to discharge their peculiar
function with too great facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such difficulty that the
force needed to induce action is sufficient also to explode the machine. Hence, the
problem of the Constitution maker is, in this particular, one of the most difficult in
our whole system, to reconcile the requisites for progress with the requisites for
safety.50
Like in McFadden, the present petition for initiative on amendments to the

Constitution is, despite its denomination, one for its revision. It purports to seek the
amendment only of Articles VI and VII of the Constitution as well as to provide
transitory provisions. However, as will be shown shortly, the amendment of these
two provisions will necessarily affect other numerous provisions of the Constitution
particularly those pertaining to the specific powers of Congress and the President.
These powers would have to be transferred to the Parliament and the Prime Minister
and/or President, as the case may be. More than one hundred (100) sections will be
affected or altered thereby:
1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the
death penalty for compelling reasons involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing

the secrecy and sanctity of the ballot as well as a system for absentee voting;
3. All 32 Sections of Article VI on the Legislative Department;
4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):
- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction

of various courts;
- Section 7 on the power of Congress to prescribe the qualifications of judges of

lower courts;
- Section 8 on the composition of Judicial Bar Council (JBC) which includes

representatives of Congress as ex officio members and on the power of the
President to appoint the regular members of the JBC;
- Section 9 on the power of the President to appoint the members of the Supreme
Court and judges of lower courts;
- Section 16 on duty of Supreme Court to make annual report to the President and
Congress.
6. The following Sections of Article IX (Constitutional Commissions);
- (B) Section 3 on duty of Civil Service Commission to make annual report to the
President and Congress;
- (B) Section 5 on power of Congress to provide by law for the standardization of

compensation of government officials;
- (B) Section 8 which provides in part that "no public officer shall accept, without the
consent of Congress, any present, emolument, etc. x x x"
- (C) Section 1 on the power of the President to appoint the Chairman and
Commissioners of the Commission on Elections with the consent of the Commission
on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress
measures to minimize election spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the
removal of any officer or employee it has deputized, or the imposition of any other
disciplinary action x x x;
- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and
Congress a report on the conduct of election, plebiscite, etc.;
- (C) Section 5 on the power of the President, with the favorable recommendation of
the COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules and regulations;
- (C) Section 7 which recognizes as valid votes cast in favor of organization

registered under party-list system;
- (C) Section 8 on political parties, organizations or coalitions under the party-list

system;
- (D) Section 1 (2) on the power of the President to appoint the Chairman and
Commissioners of the Commission on Audit (COA) with the consent of the
Commission of Appointments;
- Section 4 on duty of the COA to make annual report to the President and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a local government code;
- Section 4 on the power of the President to exercise general supervision over local
government units (LGUs);

- Section 5 on the power of LGUs to create their own sources of income x x x,
subject to such guidelines as Congress may provide;
- Section 11 on the power of Congress to create special metropolitan political

subdivisions;
- Section 14 on the power of the President to provide for regional development

councils x x x;
- Section 16 on the power of the President to exercise general supervision over

autonomous regions;
- Section 18 on the power of Congress to enact organic act for each autonomous
region as well as the power of the President to appoint the representatives to the
regional consultative commission;
- Section 19 on the duty of the first Congress elected under the Constitution to pass
the organic act for autonomous regions in Muslim Mindanao and the Cordilleras.
8. The following Sections of Article XI (Accountability of Public Officers):
- Section 2 on the impeachable officers (President, Vice-President, etc.);
- Section 3 on impeachment proceedings (exclusive power of the House to initiate

complaint and sole power of the Senate to try and decide impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman and his
deputies;
- Section 16 which provides in part that "x x x no loans or guaranty shall be granted
to the President, Vice-President, etc.
- Section 17 on mandatory disclosure of assets and liabilities by public officials

including the President, Vice-President, etc.
9. The following Sections of Article XII (National Economy and Patrimony):
- Section 2 on the power of Congress to allow, by law, small-scale utilization of

natural resources and power of the President to enter into agreements with foreignowned corporations and duty to notify Congress of every contract;
- Section 3 on the power of Congress to determine size of lands of public domain;
- Section 4 on the power of Congress to determine specific limits of forest lands;
- Section 5 on the power of Congress to provide for applicability of customary laws;
- Section 9 on the power of Congress to establish an independent economic and

planning agency to be headed by the President;
- Section 10 on the power of Congress to reserve to Filipino citizens or domestic

corporations(at least 60% Filipino-owned) certain areas of investment;
- Section 11 on the sole power of Congress to grant franchise for public utilities;
- Section 15 on the power of Congress to create an agency to promote viability of

cooperatives;
- Section 16 which provides that Congress shall not, except by general law, form
private corporations;
- Section 17 on the salaries of the President, Vice-President, etc. and the power of
Congress to adjust the same;
- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):
- Section 1 on the mandate of Congress to give highest priority to enactment of

measures that protect and enhance the right of people x x x
- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;
- Section 18 (6) on the duty of the Commission on Human Rights to recommend to

Congress effective measures to promote human rights;
- Section 19 on the power of Congress to provide for other cases to fall within the
jurisdiction of the Commission on Human Rights.
11. The following Sections of Article XIV (Education, Science and Technology, etc.):
- Section 4 on the power of Congress to increase Filipino equity participation in

educational institutions;
- Section 6 which provides that subject to law and as Congress may provide, the
Government shall sustain the use of Filipino as medium of official communication;
- Section 9 on the power of Congress to establish a national language commission;
- Section 11 on the power of Congress to provide for incentives to promote scientific

research.
12. The following Sections of Article XVI (General Provisions):
- Section 2 on the power of Congress to adopt new name for the country, new
national anthem, etc.;
- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by
the President in times of war or national emergency declared by Congress;
- Section 11 on the power of Congress to regulate or prohibit monopolies in mass

media;
- Section 12 on the power of Congress to create consultative body to advise the

President on indigenous cultural communities.
13. The following Sections of Article XVII (Amendments or Revisions):
- Section 1 on the amendment or revision of Constitution by Congress;
- Section 2 on the duty of Congress to provide for the implementation of the system
of initiative;
- Section 3 on the power of Congress to call constitutional convention to amend or

revise the Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of the 1987
Constitution will not be affected."51 Petitioners' proposition, while purportedly
seeking to amend only Articles VI and VII of the Constitution and providing
transitory provisions, will, in fact, affect, alter, replace or repeal other numerous
articles and sections thereof. More than the quantitative effects, however, the
revisory character of petitioners' proposition is apparent from the qualitative effects
it will have on the fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco that the revision
of a constitution, in its strict sense, refers to a consideration of the entire
constitution and the procedure for effecting such change; while amendment refers
only to particular provisions to be added to or to be altered in a constitution.52
For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's
more comprehensive differentiation of the terms:

provisions. But whatever results the revisions may produce, the factor that
one.
intention rather is to improve the specific parts of the existing constitution or to add
to it provisions deemed essential on account of changed conditions or to suppress
portions of it that seemed obsolete, or dangerous, or misleading in their effect.53
A change in the form of government from bicameral-presidential to unicameralparliamentary, following the above distinction, entails a revision of the Constitution
as it will involve "alteration of different portions of the entire document" and "may
result in the rewriting of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions."
More importantly, such shift in the form of government will, without doubt,
fundamentally change the basic plan and substance of the present Constitution. The
tripartite system ordained by our fundamental law divides governmental powers
into three distinct but co-equal branches: the legislative, executive and judicial.
Legislative power, vested in Congress which is a bicameral body consisting of the
House of Representatives and the Senate, is the power to make laws and to alter
them at discretion. Executive power, vested in the President who is directly elected
by the people, is the power to see that the laws are duly executed and enforced.
Judicial power, vested in the Supreme Court and the lower courts, is the power to
construe and apply the law when controversies arise concerning what has been
done or omitted under it. This separation of powers furnishes a system of checks
and balances which guards against the establishment of an arbitrary or tyrannical
government.
Under a unicameral-parliamentary system, however, the tripartite separation of

power is dissolved as there is a fusion between the executive and legislative
powers. Essentially, the President becomes a mere "symbolic head of State" while
the Prime Minister becomes the head of government who is elected, not by direct
vote of the people, but by the members of the Parliament. The Parliament is a

unicameral body whose members are elected by legislative districts. The Prime
Minister, as head of government, does not have a fixed term of office and may only
be removed by a vote of confidence of the Parliament. Under this form of
government, the system of checks and balances is emasculated.
Considering the encompassing scope and depth of the changes that would be
effected, not to mention that the Constitution's basic plan and substance of a
tripartite system of government and the principle of separation of powers
underlying the same would be altered, if not entirely destroyed, there can be no
other conclusion than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an amendment or "such an
addition or change within the lines of the original instrument as will effect an
improvement or better carry out the purpose for which it was framed."54 As has
been shown, the effect of the adoption of the petitioners' proposition, rather than to
"within the lines of the original instrument" constitute "an improvement or better
carry out the purpose for which it was framed," is to "substantially alter the purpose
and to attain objectives clearly beyond the lines of the Constitution as now cast."55
To paraphrase McFadden, petitioners' contention that any change less than a total
one is amendatory would reduce to the rubble of absurdity the bulwark so carefully
erected and preserved. A case might, conceivably, be presented where the question
would be occasion to undertake to define with nicety the line of demarcation; but
we have no case or occasion here.
As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a
parliamentary system would be a revision because of its overall impact on the
entire constitutional structure. So would a switch from a bicameral system to a
unicameral system because of its effect on other important provisions of the
Constitution. It is thus clear that what distinguishes revision from amendment is not
the quantum of change in the document. Rather, it is the fundamental qualitative
alteration that effects revision."56
The petition for initiative on amendments to the Constitution filed by petitioners

Lambino, et al., being in truth and in fact a proposal for the revision thereof, is
barred from the system of initiative upon any legally permissible construction of
Section 2, Article XVII of the Constitution.
The Petition for Initiative on

Amendments to the Constitution
is, on its Face, Insufficient in

Form and Substance
Again, even granting arguendo RA 6735 is declared sufficient to implement the

system of initiative and that COMELEC Resolution No. 2300, as it prescribed rules
and regulations on the conduct of initiative on amendments to the Constitution, is
valid, still, the petition for initiative on amendments to the Constitution must be
dismissed for being insufficient in form and substance.
Section 5 of RA 6735 requires that a petition for initiative on the Constitution must
state the following:
1. Contents or text of the proposed law sought to be enacted, approved or rejected,

amended or repealed, as the case may be;
2. The proposition;
3. The reason or reasons therefor;
4. That it is not one of the exceptions provided herein;
5. Signatures of the petitioners or registered voters; and
6. An abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
Section 7 thereof requires that the signatures be verified in this wise:
SEC. 7. Verification of Signatures. The Election Registrar shall verify the signatures
on the basis of the registry list of voters, voters' affidavits and voters' identification
cards used in the immediately preceding election.
The law mandates upon the election registrar to personally verify the signatures.
This is a solemn and important duty imposed on the election registrar which he
cannot delegate to any other person, even to barangay officials. Hence, a

verification of signatures made by persons other than the election registrars has no
legal effect.
In patent violation of the law, several certifications submitted by petitioners showed

that the verification of signatures was made, not by the election registrars, but by
barangay officials. For example, the certification of the election officer in Lumbatan,
Lanao del Sur reads in full:
LOCAL ELECTION OFFICER'S CERTIFICATION57
THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials
in this City/Municipality, as attested to by two (2) witnesses from the same
Barangays, which is part of the 2nd Legislative District of the Province of Lanao del
Sur, the names appearing on the attached signature sheets relative to the proposed
initiative on Amendments to the 1987 Constitution, are those of bonafide resident of
the said Barangays and correspond to the names found in the official list of
registered voters of the Commission on Elections and/or voters' affidavit and/or
voters' identification cards.
It is further certified that the total number of signatures of the registered voters for
the City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed
signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).
April 2, 2006
IBRAHIM M. MACADATO
Election Officer
(Underscoring supplied)
The ineffective verification in almost all the legislative districts in the Autonomous
Region of Muslim Mindanao (ARMM) alone is shown by the certifications, similarly
worded as above-quoted, of the election registrars of Buldon, Maguindanao;58
Cotabato City (Special Province);59 Datu Odin Sinsuat, Maguindanao;60 Matanog,
Maguindanao;61 Parang, Maguindanao;62 Kabantalan, Maguindanao;63 Upi,
Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan,
Maguindanao;67 Buluan, Maguindanao;68 Datu Paglas, Maguindanao;69 Datu

Piang, Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan,
Maguindanao;72 Talayan, Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74
Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 Guindulungan,
Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay,
Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan, Maguindanao;81
Indanan, Sulu;82 Jolo, Sulu;83 Maimbung, Sulu;84 Hadji Panglima, Sulu;85
Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88 Luuk, Sulu;89
Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino,
Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96
Section 7 of RA 6735 is clear that the verification of signatures shall be done by the
election registrar, and by no one else, including the barangay officials. The
foregoing certifications submitted by petitioners, instead of aiding their cause,
justify the outright dismissal of their petition for initiative. Because of the illegal
verifications made by barangay officials in the above-mentioned legislative districts,
it necessarily follows that the petition for initiative has failed to comply with the
requisite number of signatures, i.e., at least twelve percent (12%) of the total
by at least three percent (3%) of the registered voters therein.
Petitioners cannot disclaim the veracity of these damaging certifications because

they themselves submitted the same to the COMELEC and to the Court in the
present case to support their contention that the requirements of RA 6735 had been
complied with and that their petition for initiative is on its face sufficient in form and
substance. They are in the nature of judicial admissions which are conclusive and
binding on petitioners.97 This being the case, the Court must forthwith order the
dismissal of the petition for initiative for being, on its face, insufficient in form and
substance. The Court should make the adjudication entailed by the facts here and
now, without further proceedings, as it has done in other cases.98
It is argued by petitioners that, assuming arguendo that the COMELEC is correct in

relying on Santiago that RA 6735 is inadequate to cover initiative to the
Constitution, this cannot be used to legitimize its refusal to heed the people's will.
The fact that there is no enabling law should not prejudice the right of the sovereign
people to propose amendments to the Constitution, which right has already been
exercised by 6,327,952 voters. The collective and resounding act of the particles of
sovereignty must not be set aside. Hence, the COMELEC should be ordered to
comply with Section 4, Article XVII of the 1987 Constitution via a writ of mandamus.
The submission of petitioners, however, is unpersuasive.
Mandamus is a proper recourse for citizens who act to enforce a public right and to
compel the persons of a public duty most especially when mandated by the

Constitution.99 However, under Section 3, Rule 65 of the 1997 Rules of Court, for a
petition for mandamus to prosper, it must be shown that the subject of the petition
is a ministerial act or duty and not purely discretionary on the part of the board,
officer or person, and that petitioner has a well-defined, clear and certain right to
warrant the grant thereof. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in obedience to
the mandate of a legal authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done. If the law imposes a
duty upon a public official and gives him the right to decide how or when the duty
should be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise of an
official discretion nor judgment.100
To stress, in a petition for mandamus, petitioner must show a well defined, clear and
certain right to warrant the grant thereof.101 In this case, petitioners failed to
establish their right to a writ of mandamus as shown by the foregoing disquisitions.
Remand of the Case to the

COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the petition for
initiative has complied with the requisite number of signatures of at least twelve
percent (12%) of the total number of registered voters, of which every legislative
district must be represented by at least three percent (3%) of the registered voters
therein, involves contentious facts. The dissenting opinion cites the petitioners'
claim that they have complied with the same while the oppositors-intervenors have
vigorously refuted this claim by alleging, inter alia, that the signatures were not
properly verified or were not verified at all. Other oppositors-intervenors have
alleged that the signatories did not fully understand what they have signed as they
were misled into signing the signature sheets.
According to the dissenting opinion, the sufficiency of the petition for initiative and
its compliance with the requirements of RA 6735 on initiative and its implementing
rules is a question that should be resolved by the COMELEC at the first instance. It
thus remands the case to the COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not warranted. There is
nothing in RA 6735, as well as in COMELEC Resolution No. 2300, granting that it is
valid to implement the former statute, that authorizes the COMELEC to conduct any

kind of hearing, whether full-blown or trial-type hearing, summary hearing or
administrative hearing, on a petition for initiative.
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be
conducted under the control and supervision of the Commission in accordance with
Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said
implementing rules provide as follows:
Sec. 30. Verification of signatures. The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters'
identification cards used in the immediately preceding election.
Sec. 31. Determination by the Commission. The Commission shall act on the
findings of the sufficiency or insufficiency of the petition for initiative or referendum.
If it should appear that the required number of signatures has not been obtained,
the petition shall be deemed defeated and the Commission shall issue a declaration
to that effect.
If it should appear that the required number of signatures has been obtained, the
Commission shall set the initiative or referendum in accordance with the succeeding
sections.
Sec. 32. Appeal. The decision of the Commission on the findings of the sufficiency
and insufficiency of the petition for initiative or referendum may be appealed to the
Supreme Court within thirty (30) days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC is not authorized to
conduct any kind of hearing to receive any evidence for or against the sufficiency of
the petition for initiative. Rather, the foregoing rules require of the COMELEC to
determine the sufficiency or insufficiency of the petition for initiative on its face.
And it has already been shown, by the annexes submitted by the petitioners
themselves, their petition is, on its face, insufficient in form and substance. The
remand of the case to the COMELEC for reception of evidence of the parties on the
contentious factual issues is, in effect, an amendment of the abovequoted rules of
the COMELEC by this Court which the Court is not empowered to do.

The Present Petition Presents a
Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
government.102 A political question has two aspects: (1) those matters that are to
be exercised by the people in their primary political capacity; and (2) matters which
have been specifically designated to some other department or particular office of
the government, with discretionary power to act.103
In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior

Associate Justice Reynato S. Puno explained the doctrine of political question vis-vis the express mandate of the present Constitution for the courts to determine
whether or not there has been a grave abuse of discretion on the part of any branch
or instrumentality of the Government:
In the Philippine setting, there is more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of
power. For Section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "... 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." This power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It was also not xeroxed from the US
Constitution or any foreign state constitution. The CONCOM [Constitutional
Commission] 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. In cases involving the proclamation of martial law and
suspension of the privilege of habeas corpus, it is now beyond dubiety that the
government can no longer invoke the political question defense.
xxxx
To a great degree, it diminished its [political question doctrine] use as a shield to

protect other abuses of government by allowing courts to penetrate the shield with
new power to review acts of any branch or instrumentality of the government ". . .
to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction."
Even if the present petition involves the act, not of a governmental body, but of
purportedly more than six million registered voters who have signified their assent
to the proposal to amend the Constitution, the same still constitutes a justiciable
controversy, hence, a non-political question. There is no doubt that the Constitution,
under Article XVII, has explicitly provided for the manner or method to effect
amendments thereto, or revision thereof. The question, therefore, of whether there
has been compliance with the terms of the Constitution is for the Court to pass
upon.105
In the United States, in In re McConaughy,106 the State Supreme Court of

Minnesota exercised jurisdiction over the petition questioning the result of the
general election holding that "an examination of the decisions shows that the courts
have almost uniformly exercised the authority to determine the validity of the
proposal, submission, or ratification of constitutional amendments." The cases cited
were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110
among other cases.
There is no denying that "the Philippines is a democratic and republican State.

Sovereignty resides in the people and all government authority emanates from
them."111 However, I find to be tenuous the asseveration that "the argument that
the people through initiative cannot propose substantial amendments to change the
Constitution turns sovereignty in its head. At the very least, the submission
constricts the democratic space for the exercise of the direct sovereignty of the
people."112 In effect, it is theorized that despite the unambiguous text of Section 2,
Article XVII of the Constitution withholding the power to revise it from the system of
initiative, the people, in their sovereign capacity, can conveniently disregard the
said provision.
I strongly take exception to the view that the people, in their sovereign capacity,
can disregard the Constitution altogether. Such a view directly contravenes the
fundamental constitutional theory that while indeed "the ultimate sovereignty is in
the people, from whom springs all legitimate authority"; nonetheless, "by the
Constitution which they establish, they not only tie up the hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the

whole people as an aggregate body, are at liberty to take action in opposition to this
fundamental law."113 The Constitution, it should be remembered, "is the protector
of the people, placed on guard by them to save the rights of the people against
injury by the people."114 This is the essence of constitutionalism:
Through constitutionalism we placed limits on both our political institutions and

ourselves, hoping that democracies, historically always turbulent, chaotic and even
despotic, might now become restrained, principled, thoughtful and just. So we
bound ourselves over to a law that we made and promised to keep. And though a
government of laws did not displace governance by men, it did mean that now men,
democratic men, would try to live by their word.115
Section 2, Article XVII of the Constitution on the system of initiative is limited only to
proposals to amend to the Constitution, and does not extend to its revision. The
Filipino people have bound themselves to observe the manner and method to effect
the changes of the Constitution. They opted to limit the exercise of the right to
directly propose amendments to the Constitution through initiative, but did not
extend the same to the revision thereof. The petition for initiative, as it proposes to
effect the revision thereof, contravenes the Constitution. The fundamental law of
the state prescribes the limitations under which the electors of the state may
change the same, and, unless such course is pursued, the mere fact that a majority
of the electors are in favor of a change and have so expressed themselves, does not
work a change. Such a course would be revolutionary, and the Constitution of the
state would become a mere matter of form.116
The very term Constitution implies an instrument of a permanent and abiding

nature, and the provisions contained therein for its revision indicated the will of the
people that the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature.117
The Filipino people have incorporated the safety valves of amendment and revision
in Article XVII of the Constitution. The Court is mandated to ensure that these safety
valves embodied in the Constitution to guard against improvident and hasty
changes thereof are not easily trifled with. To be sure, by having overwhelmingly
ratified the Constitution, the Filipino people believed that it is "a good Constitution"
and in the words of the learned Judge Cooley:
x x x 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 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 worse.118
Indisputably, the issues posed in the present case are of transcendental importance.
Accordingly, I have approached and grappled with them with full appreciation of the
responsibilities involved in the present case, and have given to its consideration the
earnest attention which its importance demands. I have sought to maintain the
supremacy of the Constitution at whatever hazard. I share the concern of Chief
Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be interposed for the
protection of majorities even against themselves. Constitutions are adopted in times
of public repose, when sober reason holds her citadel, and are designed to check
the surging passions in times of popular excitement. But if courts could be coerced
by popular majorities into a disregard of their provisions, constitutions would
become mere 'ropes of sand,' and there would be an end of social security and of
constitutional freedom. The cause of temperance can sustain no injury from the loss
of this amendment which would be at all comparable to the injury to republican
institutions which a violation of the constitution would inflict. That large and
respectable class of moral reformers which so justly demands the observance and
enforcement of law, cannot afford to take its first reformatory step by a violation of
the constitution. How can it consistently demand of others obedience to a
constitution which it violates itself? The people can in a short time re-enact the
amendment. In the manner of a great moral reform, the loss of a few years is
nothing. The constitution is the palladium of republican freedom. The young men
coming forward upon the stage of political action must be educated to venerate it;
those already upon the stage must be taught to obey it. Whatever interest may be
advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no
sacrilegious hand must be laid upon the constitution."120
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the
petition in G.R. No. 174299.
ROMEO J. CALLEJO, SR.

Associate Justice
____________________
EN BANC

G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.)
and
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS,
ET AL.).
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
AZCUNA, J.:
"Why, friends, you go to do you know not what."
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
Article XVII of the Constitution states:
AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or

by at least three per centum of the registered votes therein. No amendment under
Sec. 3. The Congress 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 to the
electorate the question of calling such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after the approval of
such amendment or revision.
This Article states the procedure for changing the Constitution.
Constitutions have three parts the Constitution of Liberty, which states the
fundamental rights of the people; the Constitution of Government, which establishes
the structure of government, its branches and their operation; and the Constitution
of Sovereignty, which provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers. So when
Congress acts under this provision, it acts not as a legislature exercising legislative
powers. It acts as a constituent body exercising constituent powers.
The rules, therefore, governing the exercise of legislative powers do not apply, or do
not apply strictly, to the actions taken under Article XVII.
Accordingly, since Article XVII states that Congress shall provide for the
implementation of the exercise of the people's right directly to propose

amendments to the Constitution through initiative, the act of Congress pursuant
thereto is not strictly a legislative action but partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the exercise of the
people of the right to propose a law or amendments to the Constitution is, with
respect to the right to propose amendments to the Constitution, a constituent
measure, not a mere legislative one.
The consequence of this special character of the enactment, insofar as it relates to

proposing amendments to the Constitution, is that the requirements for statutory
enactments, such as sufficiency of standards and the like, do not and should not
strictly apply. As long as there is a sufficient and clear intent to provide for the
implementation of the exercise of the right, it should be sustained, as it is simply a
compliance of the mandate placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure
for proposing amendments to the Constitution, can and should be upheld, despite
shortcomings perhaps in legislative headings and standards.
For this reason, I concur in the view that Santiago v. Comelec1 should be reexamined and, after doing so, that the pronouncement therein regarding the
insufficiency or inadequacy of the measure to sustain a people's initiative to amend
the Constitution should be reconsidered in favor of allowing the exercise of this
sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice

J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a decision of this Court
interpreting a law forms part of the law interpreted as of the time of its enactment,
Republic Act No. 6735 should be deemed sufficient and adequate from the start.
This next point to address, there being a sufficient law, is whether the petition for
initiative herein involved complies with the requirements of that law as well as
those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the Declaration of

Principles, to emphasize precisely that there are instances recognized and provided
for in the Constitution where our people directly exercise their sovereign powers,

new features set forth in this People Power Charter, namely, the powers of recall,
initiative and referendum.
Nevertheless, this democratic nature of our polity is that of a democracy under the
rule of law. This equally important point is emphasized in the very Preamble to the
Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . . ."
Such is the case with respect to the power to initiate changes in the Constitution.
The power is subject to limitations under the Constitution itself, thus: The power
could not be exercised for the first five years after the Constitution took effect and
thereafter can only be exercised once every five years; the power only extends to
proposing amendments but not revisions; and the power needs an act of Congress
providing for its implementation, which act is directed and mandated.
The question, therefore, arises whether the proposed changes in the Constitution
set forth in the petition for initiative herein involved are mere amendments or rather
are revisions.
Revisions are changes that affect the entire Constitution and not mere parts of it.
The reason why revisions are not allowed through direct proposals by the people
through initiative is a practical one, namely, there is no one to draft such extensive
changes, since 6.3 million people cannot conceivably come up with a single
extensive document through a direct proposal from each of them. Someone would
have to draft it and that is not authorized as it would not be a direct proposal from
the people. Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a Constitutional
Convention created under the same provision. Furthermore, there is a need for such
deliberative bodies for revisions because their proceedings and debates are duly
and officially recorded, so that future cases of interpretations can be properly aided
by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the petition for
initiative herein involved will show on its face that the proposed changes constitute
a revision of the Constitution. The proposal is to change the system of government
from that which is bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the
petition and text of the proposed changes themselves state, every provision of the
Constitution will have to be examined to see if they conform to the nature of a
unicameral-parliamentary form of government and changed accordingly if they do
not so conform to it. For example, Article VIII on Judicial Department cannot stand as
is, in a parliamentary system, for under such a system, the Parliament is supreme,
and thus the Court's power to declare its act a grave abuse of discretion and thus
void would be an anomaly.
Now, who is to do such examination and who is to do such changes and how should
the changes be worded? The proposed initiative does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a prohibited revision but
it also suffers from being incomplete and insufficient on its very face.
It, therefore, in that form, cannot pass muster the very limits contained in providing
for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in Section 10 that
not more than one subject shall be proposed as an amendment or amendments to
the Constitution. The petition herein would propose at the very least two subjects
a unicameral legislature and a parliamentary form of government. Again, for this
clear and patent violation of the very act that provides for the exercise of the power,
the proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view, separable in
nature a unicameral legislature is one; a parliamentary form of government is
another. The first is a mere amendment and contains only one subject matter. The
second is clearly a revision that affects every article and every provision in the
Constitution to an extent not even the proponents could at present fully articulate.
Petitioners Lambino, et al. thus go about proposing changes the nature and extent
of which they do not as yet know exactly what.
The proposal, therefore, contained in the petition for initiative, regarding a change
in the legislature from a bicameral or two-chamber body to that of a unicameral or

one-chamber body, is sustainable. The text of the changes needed to carry it out
are perfunctory and ministerial in nature. Once it is limited to this proposal, the
changes are simply one of deletion and insertions, the wordings of which are
practically automatic and non-discretionary.
As an example, I attach to this opinion an Appendix "A" showing how the

Constitution would read if we were to change Congress from one consisting of the
Senate and the House of Representatives to one consisting only of the House of
Representatives. It only affects Article VI on the Legislative Department, some
provisions on Article VII on the Executive Department, as well as Article XI on the
Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are
mere amendments, substantial ones indeed but still only amendments, and they
address only one subject matter.
Such proposal, moreover, complies with the intention and rationale behind the
present initiative, which is to provide for simplicity and economy in government and
reduce the stalemates that often prevent needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the
filing of an appropriate initiative to propose amendments to the Constitution to
change Congress into a unicameral body. This is not say that I favor such a change.
Rather, such a proposal would come within the purview of an initiative allowed
under Article XVII of the Constitution and its implementing Republic Act, and should,
therefore, be submitted to our people in a plebiscite for them to decide in their
sovereign capacity. After all is said and done, this is what democracy under the rule
of law is about.
ADOLFO S. AZCUNA
Associate Justice
____________________
EN BANC
G. R. No. 174153
October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED
VOTERS
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299
October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG

vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe
and Peter Doe
x ---------------------------------------------------------------------------------------- x
"It is a Constitution we are expounding"1
Chief Justice John Marshall
DISSENTING OPINION
PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the controversy is the
critical understanding of the first and foremost of our constitutional principles
"the Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them."2 Constitutionalism
dictates that this creed must be respected with deeds; our belief in its validity must
be backed by behavior.
This is a Petition for Certiorari and Mandamus to set aside the resolution of
respondent Commission on Elections (COMELEC) dated August 31, 2006, denying
due course to the Petition for Initiative filed by petitioners Raul L. Lambino and Erico

B. Aumentado in their own behalf and together with some 6.3 million registered
voters who have affixed their signatures thereon, and praying for the issuance of a
writ of mandamus to compel respondent COMELEC to set the date of the plebiscite
for the ratification of the proposed amendments to the Constitution in accordance
with Section 2, Article XVII of the 1987 Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the Movement for

People's Initiative sought to exercise the sovereign people's power to directly
propose amendments to the Constitution through initiative under Section 2, Article
XVII of the 1987 Constitution. Its founding member, Atty. Jesus S. Delfin, filed with
the COMELEC on December 6, 1996, a "Petition to Amend the Constitution, to Lift
Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It proposed
to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of
Article X of the 1987 Constitution by deleting the provisions on the term limits for all
elective officials.
The Delfin Petition stated that the Petition for Initiative would first be submitted to
the people and would be formally filed with the COMELEC after it is signed by at
least twelve per cent (12%) of the total number of registered voters in the country.
It thus sought the assistance of the COMELEC in gathering the required signatures
by fixing the dates and time therefor and setting up signature stations on the
assigned dates and time. The petition prayed that the COMELEC issue an Order (1)
fixing the dates and time for signature gathering all over the country; (2) causing
the publication of said Order and the petition for initiative in newspapers of general
and local circulation; and, (3) instructing the municipal election registrars in all the
regions of the Philippines to assist petitioner and the volunteers in establishing
signing stations on the dates and time designated for the purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and
Maria Isabel Ongpin filed a special civil action for prohibition before this Court,
seeking to restrain the COMELEC from further considering the Delfin Petition. They
impleaded as respondents the COMELEC, Delfin, and Alberto and Carmen Pedrosa
(Pedrosas) in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA) which was likewise engaged in signature
gathering to support an initiative to amend the Constitution. They argued that the
constitutional provision on people's initiative may only be implemented by a law
passed by Congress; that no such law has yet been enacted by Congress; that
Republic Act No. 6735 relied upon by Delfin does not cover the initiative to amend
the Constitution; and that COMELEC Resolution No. 2300, the implementing rules
adopted by the COMELEC on the conduct of initiative, was ultra vires insofar as the

initiative to amend the Constitution was concerned. The case was docketed as G.R.
No. 127325, entitled Santiago v. Commission on Elections.3
Pending resolution of the case, the Court issued a temporary restraining order
enjoining the COMELEC from proceeding with the Delfin Petition and the Pedrosas
from conducting a signature drive for people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for prohibition.
The Court ruled that the constitutional provision granting the people the power to
directly amend the Constitution through initiative is not self-executory. An enabling
law is necessary to implement the exercise of the people's right. Examining the
provisions of R.A. 6735, a majority of eight (8) members of the Court held that said
law was "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned,"4 and thus
voided portions of COMELEC Resolution No. 2300 prescribing rules and regulations
on the conduct of initiative on amendments to the Constitution. It was also held that
even if R.A. 6735 sufficiently covered the initiative to amend the Constitution and
COMELEC Resolution No. 2300 was valid, the Delfin Petition should still be dismissed
as it was not the proper initiatory pleading contemplated by law. Under Section 2,
Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a petition for
initiative on the Constitution must be signed by at least twelve per cent (12%) of
the total number of registered voters, of which every legislative district is
represented by at least three per cent (3%) of the registered voters therein. The
Delfin Petition did not contain signatures of the required number of voters. The
decision stated:
CONCLUSION

under that system.
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on


d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition

(UND-96-037).

against the Commission on Elections, but is LIFTED as against private respondents.5
Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr.
(ponente), Chief Justice Andres R. Narvasa, and Associate Justices Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino
C. Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion.
While all the members of the Court who participated in the deliberation6 agreed
that the Delfin Petition should be dismissed for lack of the required signatures, five
(5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V.
Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was
sufficient and adequate to implement the people's right to amend the Constitution
through initiative, and that COMELEC Resolution No. 2300 validly provided the
details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand,
opined that the Court should confine itself to resolving the issue of whether the
Delfin Petition sufficiently complied with the requirements of the law on initiative,
and there was no need to rule on the adequacy of R.A. 6735.
The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of
the Court's decision.

After deliberating on the motions for reconsideration, six (6)7 of the eight (8)
majority members maintained their position that R.A. 6735 was inadequate to
implement the provision on the initiative on amendments to the Constitution. Justice
Torres filed an inhibition, while Justice Hermosisima submitted a Separate Opinion
adopting the position of the minority that R.A. 6735 sufficiently covers the initiative
to amend the Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and
Associate Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny
the motions for lack of merit; and six (6) members, namely, Associate Justices Melo,
Puno, Mendoza, Francisco, Hermosisima and Panganiban voted to grant the same.
Justice Vitug maintained his opinion that the matter was not ripe for judicial
adjudication. The motions for reconsideration were therefore denied for lack of
sufficient votes to modify or reverse the decision of March 19, 1997.8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose
Amendments to the Constitution (PIRMA Petition). The PIRMA Petition was supported
by around five (5) million signatures in compliance with R.A. 6735 and COMELEC
Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the
publication of the petition in Filipino and English at least twice in newspapers of
general and local circulation; (2) order all election officers to verify the signatures
collected in support of the petition and submit these to the Commission; and (3) set
the holding of a plebiscite where the following proposition would be submitted to
the people for ratification:
Do you approve amendments to the 1987 Constitution giving the President the
chance to be reelected for another term, similarly with the Vice-President, so that
both the highest officials of the land can serve for two consecutive terms of six
years each, and also to lift the term limits for all other elective government officials,
thus giving Filipino voters the freedom of choice, amending for that purpose,
Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?
The COMELEC dismissed the PIRMA Petition in view of the permanent restraining
order issued by the Court in Santiago v. COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set
aside the COMELEC Resolution dismissing its petition for initiative. PIRMA argued
that the Court's decision on the Delfin Petition did not bar the COMELEC from acting
on the PIRMA Petition as said ruling was not definitive based on the deadlocked
voting on the motions for reconsideration, and because there was no identity of
parties and subject matter between the two petitions. PIRMA also urged the Court to
reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its resolution dated
September 23, 1997. It explained:
Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its
The Court next considered the question of whether there was need to resolve the
second issue posed by the petitioners, namely, that the Court re-examine its ruling
as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of
the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ.,
voted that there was no need to take it up. Vitug, J., agreed that there was no need
for re-examination of said second issue since the case at bar is not the proper
vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno,
Francisco, Hermosisima, and Panganiban, JJ., opined that there was a need for such
a re-examination x x x x9
In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo
stated that the PIRMA petition was dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew
the system of initiative to amend the Constitution, this time to change the form of
government from bicameral-presidential to unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local

Authorities of the Philippines (ULAP), embarked on a nationwide drive to gather
signatures to support the move to adopt the parliamentary form of government in
the country through charter change. They proposed to amend the Constitution as
follows:


of government.

XVIII, entitled "Transitory Provisions," which shall read, as follows:
however, that any all references therein to "Congress," "Senate," "House of
"Member(s) of Parliament" and any and all references to the "President" and or


strong bureaucracy.
of all local government officials. The duly elected Prime Minister shall continue to
President.10
Sigaw ng Bayan prepared signature sheets, on the upper portions of which were
written the abstract of the proposed amendments, to wit:
Abstract: Do you approve of the amendment of Articles VI and VII of the 1987
Constitution, changing the form of government from the present bicameralpresidential to a unicameral-parliamentary system of government, in order to
achieve greater efficiency, simplicity and economy in government; and providing an
Article XVIII as Transitory Provisions for the orderly shift from one system to
another?
The signature sheets were distributed nationwide to affiliated non-government

organizations and volunteers of Sigaw ng Bayan, as well as to the local officials.
Copies of the draft petition for initiative containing the proposition were also
circulated to the local officials and multi-sectoral groups.
Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on
March 24, 25 and 26, 2006, to inform the people and explain to them the proposed

amendments to the Constitution. Thereafter, they circulated the signature sheets
for signing.
The signature sheets were then submitted to the local election officers for
verification based on the voters' registration record. Upon completion of the
verification process, the respective local election officers issued certifications to
attest that the signature sheets have been verified. The verified signature sheets
were subsequently transmitted to the office of Sigaw ng Bayan for the counting of
the signatures.
On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado
filed with the COMELEC a Petition for Initiative to Amend the Constitution entitled
"In the Matter of Proposing Amendments to the 1987 Constitution through a
People's Initiative: A Shift from a Bicameral Presidential to a Unicameral
Parliamentary Government by Amending Articles VI and VII; and Providing Transitory
Provisions for the Orderly Shift from the Presidential to the Parliamentary System."
They filed an Amended Petition on August 30, 2006 to reflect the text of the
proposed amendment that was actually presented to the people. They alleged that
they were filing the petition in their own behalf and together with some 6.3 million
registered voters who have affixed their signatures on the signature sheets
attached thereto. Petitioners appended to the petition signature sheets bearing the
signatures of registered voters which they claimed to have been verified by the
respective city or municipal election officers, and allegedly constituting at least
twelve per cent (12%) of all registered voters in the country, wherein each
legislative district is represented by at least three per cent (3%) of all the registered
voters therein.
As basis for the filing of their petition for initiative, petitioners averred that Section 5
(b) and (c), together with Section 7 of R.A. 6735, provide sufficient enabling details
for the people's exercise of the power. Hence, petitioners prayed that the COMELEC
issue an Order:
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in

after the Certification by the COMELEC of the sufficiency of the petition, to allow the
Filipino people to express their sovereign will on the proposition.
Several groups filed with the COMELEC their respective oppositions to the petition
for initiative, among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin,
Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr.,
Senators Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson,
Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P.
Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby
Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C.
Tabayoyong.
On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It
cited this Court's ruling in Santiago v. COMELEC11 permanently enjoining the
Commission from entertaining or taking cognizance of any petition for initiative on
Forthwith, petitioners filed with this Court the instant Petition for Certiorari and
Mandamus praying that the Court set aside the August 31, 2006 resolution of the
COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the
Constitution, and set the date of the plebiscite. They state the following grounds in
support of the petition:
I.
The Honorable public respondent COMELEC committed grave abuse of discretion in

refusing to take cognizance of, and to give due course to the petition for initiative,
because the cited Santiago ruling of 19 March 1997 cannot be considered the
majority opinion of the Supreme Court en banc, considering that upon its
reconsideration and final voting on 10 June 1997, no majority vote was secured to
declare Republic Act No. 6735 as inadequate, incomplete and insufficient in
standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing
appropriation of the COMELEC provide for sufficient details and authority for the
exercise of people's initiative, thus, existing laws taken together are adequate and
complete.
III.
The Honorable public respondent COMELEC committed grave abuse of discretion in

refusing to take cognizance of, and in refusing to give due course to the petition for
initiative, thereby violating an express constitutional mandate and disregarding and
contravening the will of the people.
A.
Assuming in arguendo that there is no enabling law, respondent COMELEC cannot

ignore the will of the sovereign people and must accordingly act on the petition for
initiative.
1.
The framers of the Constitution intended to give the people the power to propose
amendments and the people themselves are now giving vibrant life to this
constitutional provision.
2.
Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to
exercise the sovereign power of initiative and recall has been invariably upheld.
3.
The exercise of the initiative to propose amendments is a political question which

shall be determined solely by the sovereign people.
4.
By signing the signature sheets attached to the petition for initiative duly verified by
the election officers, the people have chosen to perform this sacred exercise of their
sovereign power.
B.
The Santiago ruling of 19 March 1997 is not applicable to the instant petition for
initiative filed by the petitioners.
C.
The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin
petition.
1.
It is the dispositive portion of the decision and not other statements in the body of
the decision that governs the rights in controversy.
IV.
The Honorable public respondent failed or neglected to act or perform a duty

mandated by law.
A.
The ministerial duty of the COMELEC is to set the initiative for plebiscite.12

The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin,
Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum,
Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students,
Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas;
Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea III,
Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and
Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana
Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose Anselmo I.
Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C.
Tabayoyong moved to intervene in this case and filed their respective
Oppositions/Comments-in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo,

Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and
Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu
Province Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino; and the Senate of the Philippines, represented by Senate President Manuel
Villar, Jr., also filed their respective motions for intervention and Comments-inIntervention.
The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation,

Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and
General Workers Organization, and Victorino F. Balais likewise moved to intervene
and submitted to the Court a Petition-in-Intervention. All interventions and
oppositions were granted by the Court.
The oppositors-intervenors essentially submit that the COMELEC did not commit
grave abuse of discretion in denying due course to the petition for initiative as it
merely followed this Court's ruling in Santiago v. COMELEC as affirmed in the case of
PIRMA v. COMELEC, based on the principle of stare decisis; that there is no sufficient
law providing for the authority and the details for the exercise of people's initiative
to amend the Constitution; that the proposed changes to the Constitution are
actually revisions, not mere amendments; that the petition for initiative does not
meet the required number of signatories under Section 2, Article XVII of the 1987
Constitution; that it was not shown that the people have been informed of the
proposed amendments as there was disparity between the proposal presented to
them and the proposed amendments attached to the petition for initiative, if indeed
there was; that the verification process was done ex parte, thus rendering dubious
the signatures attached to the petition for initiative; and that petitioners Lambino
and Aumentado have no legal capacity to represent the signatories in the petition
for initiative.
The Office of the Solicitor General (OSG), in compliance with the Court's resolution
of September 5, 2006, filed its Comment to the petition. Affirming the position of
the petitioners, the OSG prayed that the Court grant the petition at bar and render
judgment: (1) declaring R.A. 6735 as adequate to cover or as reasonably sufficient
to implement the system of initiative on amendments to the Constitution and as
having provided sufficient standards for subordinate legislation; (2) declaring as
valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or
amendments to the Constitution; (3) setting aside the assailed resolution of the
COMELEC for having been rendered with grave abuse of discretion amounting to
lack or excess of jurisdiction; and, (4) directing the COMELEC to grant the petition
for initiative and set the corresponding plebiscite pursuant to R.A. 6735, COMELEC
Resolution No. 2300, and other pertinent election laws and regulations.
The COMELEC filed its own Comment stating that its resolution denying the petition
for initiative is not tainted with grave abuse of discretion as it merely adhered to the
ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does not
adequately implement the constitutional provision on initiative to amend the
Constitution. It invoked the permanent injunction issued by the Court against the
COMELEC from taking cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by Congress. It
asserted that the permanent injunction covers not only the Delfin Petition, but also
all other petitions involving constitutional initiatives.
On September 26, 2006, the Court heard the case. The parties were required to
argue on the following issues:13
1. Whether petitioners Lambino and Aumentado are proper parties to file the
present Petition in behalf of the more than six million voters who allegedly signed
the proposal to amend the Constitution.
2. Whether the Petitions for Initiative filed before the Commission on Elections
complied with Section 2, Article XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March
19, 1997) bars the present petition.

4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that
there is no sufficient law implementing or authorizing the exercise of people's
initiative to amend the Constitution.
5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the
COMELEC have complied with its provisions.
5.1 Whether the said petitions are sufficient in form and substance.
5.2 Whether the proposed changes embrace more than one subject matter.
6. Whether the proposed changes constitute an amendment or revision of the

Constitution.
6.1 Whether the proposed changes are the proper subject of an initiative.
7. Whether the exercise of an initiative to propose amendments to the Constitution

is a political question to be determined solely by the sovereign people.
8. Whether the Commission on Elections committed grave abuse of discretion in

dismissing the Petitions for Initiative filed before it.
With humility, I offer the following views to these issues as profiled:
Petitioners Lambino and Aumentado are proper parties to file the present Petition in
behalf of the more than six million voters who allegedly signed the proposal to
amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and Aumentado are not

the proper parties to file the instant petition as they were not authorized by the
signatories in the petition for initiative.
The argument deserves scant attention. The Constitution requires that the petition
for initiative should be filed by at least twelve per cent (12%) of all registered
voters, of which every legislative district must be represented by at least three per
cent (3%) of all the registered voters therein. The petition for initiative filed by
Lambino and Aumentado before the COMELEC was accompanied by voluminous
signature sheets which prima facie show the intent of the signatories to support the
filing of said petition. Stated above their signatures in the signature sheets is the
following:
x x x My signature herein which shall form part of the petition for initiative to amend
the Constitution signifies my support for the filing thereof.14
There is thus no need for the more than six (6) million signatories to execute
separate documents to authorize petitioners to file the petition for initiative in their
behalf.
Neither is it necessary for said signatories to authorize Lambino and Aumentado to

file the petition for certiorari and mandamus before this Court. Rule 65 of the 1997
Rules of Civil Procedure provides who may file a petition for certiorari and
mandamus. Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising

judicial or quasi-judicial functions has acted without or in excess of his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper
court x x x x.
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station x x x and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court x x x x.
Thus, any person aggrieved by the act or inaction of the respondent tribunal, board
or officer may file a petition for certiorari or mandamus before the appropriate
court. Certainly, Lambino and Aumentado, as among the proponents of the petition

for initiative dismissed by the COMELEC, have the standing to file the petition at
bar.
II
The doctrine of stare decisis does not bar the reexamination of Santiago.
The latin phrase stare decisis et non quieta movere means "stand by the thing and
do not disturb the calm." The doctrine started with the English Courts.15 Blackstone
observed that at the beginning of the 18th century, "it is an established rule to
abide by former precedents where the same points come again in litigation."16 As
the rule evolved, early limits to its application were recognized: (1) it would not be
followed if it were "plainly unreasonable;" (2) where courts of equal authority
developed conflicting decisions; and, (3) the binding force of the decision was the
"actual principle or principles necessary for the decision; not the words or reasoning
used to reach the decision."17
The doctrine migrated to the United States. It was recognized by the framers of the
U.S. Constitution.18 According to Hamilton, "strict rules and precedents" are
necessary to prevent "arbitrary discretion in the courts."19 Madison agreed but
stressed that "x x x once the precedent ventures into the realm of altering or
repealing the law, it should be rejected."20 Prof. Consovoy well noted that Hamilton
and Madison "disagree about the countervailing policy considerations that would
allow a judge to abandon a precedent."21 He added that their ideas "reveal a deep
internal conflict between the concreteness required by the rule of law and the
flexibility demanded in error correction. It is this internal conflict that the Supreme
Court has attempted to deal with for over two centuries."22
Indeed, two centuries of American case law will confirm Prof. Consovoy's
observation although stare decisis developed its own life in the United States. Two
strains of stare decisis have been isolated by legal scholars.23 The first, known as
vertical stare decisis deals with the duty of lower courts to apply the decisions of
the higher courts to cases involving the same facts. The second, known as
horizontal stare decisis requires that high courts must follow its own precedents.
Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an
obligation, while horizontal stare decisis, has been viewed as a policy, imposing
choice but not a command.24 Indeed, stare decisis is not one of the precepts set in
stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis
constitutional stare decisis and statutory stare decisis.25 Constitutional stare decisis
involves judicial interpretations of the Constitution while statutory stare decisis
involves interpretations of statutes. The distinction is important for courts enjoy
more flexibility in refusing to apply stare decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the doctrine in constitutional litigations still
holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a
universal and inexorable command. The rule of stare decisis is not inflexible.
Whether it shall be followed or departed from, is a question entirely within the
discretion of the court, which is again called upon to consider a question once
decided."26 In the same vein, the venerable Justice Frankfurter opined: "the
ultimate touchstone of constitutionality is the Constitution itself and not what we
have said about it."27 In contrast, the application of stare decisis on judicial
interpretation of statutes is more inflexible. As Justice Stevens explains: "after a
statute has been construed, either by this Court or by a consistent course of
decision by other federal judges and agencies, it acquires a meaning that should be
as clear as if the judicial gloss had been drafted by the Congress itself."28 This
stance reflects both respect for Congress' role and the need to preserve the courts'
limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1)
it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows
for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule
where30 (1) its application perpetuates illegitimate and unconstitutional holdings;
(2) it cannot accommodate changing social and political understandings; (3) it
leaves the power to overturn bad constitutional law solely in the hands of Congress;
and, (4) activist judges can dictate the policy for future courts while judges that
respect stare decisis are stuck agreeing with them.
In its 200-year history, the U.S. Supreme Court has refused to follow the stare
decisis rule and reversed its decisions in 192 cases.31 The most famous of these
reversals is Brown v. Board of Education32 which junked Plessy v. Ferguson's33
"separate but equal doctrine." Plessy upheld as constitutional a state law
requirement that races be segregated on public transportation. In Brown, the U.S.
Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus,
by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the
colored Americans from the chains of inequality. In the Philippine setting, this Court
has likewise refused to be straitjacketed by the stare decisis rule in order to
promote public welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos,34 we
reversed our original ruling that certain provisions of the Mining Law are
unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we overturned our
first ruling and held, on motion for reconsideration, that a private respondent is
bereft of the right to notice and hearing during the evaluation stage of the
extradition process.
An examination of decisions on stare decisis in major countries will show that courts
are agreed on the factors that should be considered before overturning prior rulings.
These are workability, reliance, intervening developments in the law and changes in
fact. In addition, courts put in the balance the following determinants: closeness of
the voting, age of the prior decision and its merits.36
The leading case in deciding whether a court should follow the stare decisis rule in
constitutional litigations is Planned Parenthood v. Casey.37 It established a 4pronged test. The court should (1) determine whether the rule has proved to be
intolerable simply in defying practical workability; (2) consider whether the rule is
subject to a kind of reliance that would lend a special hardship to the consequences
of overruling and add inequity to the cost of repudiation; (3) determine whether
related principles of law have so far developed as to have the old rule no more than
a remnant of an abandoned doctrine; and, (4) find out whether facts have so
changed or come to be seen differently, as to have robbed the old rule of significant
application or justification.
Following these guidelines, I submit that the stare decisis rule should not bar the
reexamination of Santiago. On the factor of intolerability, the six (6) justices in
Santiago held R.A. 6735 to be insufficient as it provided no standard to guide
COMELEC in issuing its implementing rules. The Santiago ruling that R.A. 6735 is
insufficient but without striking it down as unconstitutional is an intolerable
aberration, the only one of its kind in our planet. It improperly assails the ability of
legislators to write laws. It usurps the exclusive right of legislators to determine how
far laws implementing constitutional mandates should be crafted. It is elementary
that courts cannot dictate on Congress the style of writing good laws, anymore than
Congress can tell courts how to write literate decisions. The doctrine of separation
of powers forbids this Court to invade the exclusive lawmaking domain of Congress
for courts can construe laws but cannot construct them. The end result of the ruling
of the six (6) justices that R.A. 6735 is insufficient is intolerable for it rendered
lifeless the sovereign right of the people to amend the Constitution via an initiative.
On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce
any expectation from the people. On the contrary, the ruling smothered the hope of
the people that they could amend the Constitution by direct action. Moreover,
reliance is a non-factor in the case at bar for it is more appropriate to consider in
decisions involving contracts where private rights are adjudicated. The case at bar
involves no private rights but the sovereignty of the people.

On the factor of changes in law and in facts, certain realities on ground cannot be
blinked away. The urgent need to adjust certain provisions of the 1987 Constitution
to enable the country to compete in the new millennium is given. The only point of
contention is the mode to effect the change - - - whether through constituent
assembly, constitutional convention or people's initiative. Petitioners claim that they
have gathered over six (6) million registered voters who want to amend the
Constitution through people's initiative and that their signatures have been verified
by registrars of the COMELEC. The six (6) justices who ruled that R.A. 6735 is
insufficient to implement the direct right of the people to amend the Constitution
through an initiative cannot waylay the will of 6.3 million people who are the
bearers of our sovereignty and from whom all government authority emanates. New
developments in our internal and external social, economic, and political settings
demand the reexamination of the Santiago case. The stare decisis rule is no reason
for this Court to allow the people to step into the future with a blindfold.
III
A reexamination of R.A. 6735 will show that it is sufficient to implement the people's
initiative.
Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is
insufficient to implement Section 2, Article XVII of the 1987 Constitution allowing
amendments to the Constitution to be directly proposed by the people through
initiative.
When laws are challenged as unconstitutional, courts are counseled to give life to
the intent of legislators. In enacting R.A. 6735, it is daylight luminous that Congress
intended the said law to implement the right of the people, thru initiative, to
propose amendments to the Constitution by direct action. This all-important intent
is palpable from the following:
First. The text of R.A. 6735 is replete with references to the right of the people to
initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of 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)
It 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," and "plebiscite" as "the electoral process by which an initiative on the
Constitution is approved or rejected by the people."
It provides the requirements for a petition for initiative to amend the Constitution,
viz:
(1) 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 three per centum
(3%) of the registered voters therein;"38 and
(2) 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."39
It fixes the effectivity date of the amendment under Section 9(b) which provides
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."
Second. The legislative history of R.A. 6735 also reveals the clear intent of the
lawmakers to use it as the instrument to implement people's initiative. No less than
former Chief Justice Hilario G. Davide, Jr., the ponente in Santiago, concedes:40
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 x x x x 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 and by the House of
Representatives. This approved bill is now R.A. No. 6735.

Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate
beyond doubt this intent. In his sponsorship remarks, the late Senator Raul Roco
(then a Member of the House of Representatives) emphasized the intent to make
initiative as a mode whereby the people can propose amendments to the
Constitution. We quote his relevant remarks:41
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in
support of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987,
which later on may be called Initiative and Referendum Act of 1989.
As a background, we want to point out the constitutional basis of this particular bill.
The grant of plenary legislative power upon the Philippine Congress by the 1935,
1973 and 1987 Constitutions, Mr. Speaker, was based on the principle that any
power deemed to be legislative by usage and tradition is necessarily possessed by
the Philippine Congress unless the Organic Act has lodged it elsewhere. This was a
citation from Vera vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution saw the application of
the principle of separation of powers. While under the parliamentary system of the
1973 Constitution the principle remained applicable, Amendment 6 or the 1981
amendments to the 1973 Constitution ensured presidential dominance over the
Batasang Pambansa.
Our constitutional history saw the shifting and sharing of legislative power between
the legislature and the executive.
Transcending such changes in the exercise of legislative power is the declaration in

the Philippine Constitution that he Philippines is a Republican State where
sovereignty resides in the people and all government authority emanates from
them.
In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating
through the right of suffrage and indicating thereby their choice of lawmakers.

Under the 1987 Constitution, lawmaking power is still preserved in Congress.
However, to institutionalize direct action of the people as exemplified in the 1986
Revolution, there is a practical recognition of what we refer to as people's sovereign
power. This is the recognition of a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I quote:
The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum.
In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have
plenary powers. There is a reserved legislative power given to the people expressly.
Section 32, the implementing provision of the same article of the Constitution
provides, and I quote:
The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any act or law or part thereof passed by the
Congress or local legislative body after the registration of a petition therefor signed
by at least ten per centum of the total number of registered voters, or which every
legislative district must be represented by at least three per centum of the
registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative

power, there are reserved powers given to the people. In Section 32, we are
specifically told to pass at the soonest possible time a bill on referendum and
initiative. We are specifically mandated to share the legislative powers of Congress
with the people.
Of course, another applicable provision in the Constitution is Section 2, Article XVII,

Mr. Speaker. Under the provision on amending the Constitution, the section reads,
and I quote:
Amendments to this Constitution may likewise be directly proposed by the people


least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this
We in Congress therefore, Mr. Speaker, are charged with the duty to implement the
exercise by the people of the right of initiative and referendum.
House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral
Reforms last December 14, 1988, Mr. Speaker, is the response to such a
constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and
referendum under Philippine law has occurred.
Mr. Speaker, the system of initiative and referendum is not new. In a very limited
extent, the system is provided for in our Local Government Code today. On
initiative, for instance, Section 99 of the said code vests in the barangay assembly
the power to initiate legislative processes, to hold plebiscites and to hear reports of
the sangguniang barangay. There are variations of initiative and referendum. The
barangay assembly is composed of all persons who have been actual residents of
the barangay for at least six months, who are at least 15 years of age and citizens
of the Philippines. The holding of barangay plebiscites and referendum is also
provided in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit
the same to the Secretary to be incorporated as part of my speech.
To continue, Mr. Speaker these same principles are extensively applied by the Local
Government Code as it is now mandated by the 1987 Constitution.
In other jurisdictions, Mr. Speaker, we have ample examples of initiative and

referendum similar to what is now contained in House Bill No. 21505. As in the 1987
Constitutions and House Bill No. 21505, the various constitutions of the states in the
United States recognize the right of registered voters to initiate the enactment of
any statute or to reject any existing law or parts thereof in a referendum. These
states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma, Oregon,
In certain American states, the kind of laws to which initiative and referendum
applies is also without ay limitation, except for emergency measures, which is
likewise incorporated in Section 7(b) of House Bill No. 21505.
The procedure provided by the House bill from the filing of the petition, the
requirement of a certain percentage of supporters to present a proposition to
submission to electors is substantially similar to those of many American laws. Mr.
Speaker, those among us who may have been in the United States, particularly in
California, during election time or last November during the election would have
noticed different propositions posted in the city walls. They were propositions
submitted by the people for incorporation during the voting. These were in the
nature of initiative, Mr. Speaker.
Although an infant then in Philippine political structure, initiative and referendum is

a tried and tested system in other jurisdictions, and House Bill No. 21505 through
the various consolidated bills is patterned after American experience in a great
respect.
What does the bill essentially say, Mr. Speaker? Allow me to try to bring our
colleagues slowly through the bill. The bill has basically only 12 sections. The
constitutional Commissioners, Mr. Speaker, saw this system of initiative and
referendum as an instrument which can be used should the legislature show itself
indifferent to the needs of the people. That is why, Mr. Speaker, it may be timely,
since we seem to be amply criticized, as regards our responsiveness, to pass this
bill on referendum and initiative now. While indifference would not be an
appropriate term to use at this time, and surely it is not the case although we are so
criticized, one must note that it is a felt necessity of our times that laws need to be
proposed and adopted at the soonest possible time to spur economic development,
safeguard individual rights and liberties, and share governmental power with the
people.
With the legislative powers of the President gone, we alone, together with the
Senators when they are minded to agree with us, are left with the burden of
enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.

First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what
the term connotes. It means that the people, on their own political judgment,
submit fore the consideration and voting of the general electorate a bill or a piece of
legislation.
Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to
amend the Constitution. This can occur once every five years. Another is an
initiative to amend statutes that we may have approved. Had this bill been an
existing law, Mr. Speaker, it is most likely that an overwhelming majority of the
barangays in the Philippines would have approved by initiative the matter of direct
voting.
The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact
regional, provincial, city, municipal or barangay laws or ordinances. It comes from
the people and it must be submitted directly to the electorate. The bill gives a
definite procedure and allows the COMELEC to define rules and regulations to give
teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power of the people to approve
or reject something that Congress has already approved.
For instance, Mr. Speaker, when we divide the municipalities or the barangays into
two or three, we must first get the consent of the people affected through plebiscite
or referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be

petitioned by the people if, for instance, they do not life the bill on direct elections
and it is approved subsequently by the Senate. If this bill had already become a law,
then the people could petition that a referendum be conducted so that the acts of
Congress can be appropriately approved or rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill,
the initiative comes from the people, from registered voters of the country, by
presenting a proposition so that the people can then submit a petition, which is a
piece of paper that contains the proposition. The proposition in the example I have
been citing is whether there should be direct elections during the barangay
elections. So the petition must be filed in the appropriate agency and the
proposition must be clear stated. It can be tedious but that is how an effort to have
direct democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to
have referendum or initiative petitioned by the people. Under Section 4 of the
committee report, we are given certain limitations. For instance, to exercise the
power of initiative or referendum, at least 10 percent of the total number of
registered voters, of which every legislative district is represented by at least 3
percent of the registered voters thereof, shall sign a petition. These numbers, Mr.
Speaker, are not taken from the air. They are mandated by the Constitution. There
must be a requirement of 10 percent for ordinary laws and 3 percent representing
all districts. The same requirement is mutatis mutandis or appropriately modified
and applied to the different sections. So if it is, for instance, a petition on initiative
or referendum for a barangay, there is a 10 percent or a certain number required of
the voters of the barangay. If it is for a district, there is also a certain number
required of all towns of the district that must seek the petition. If it is for a province
then again a certain percentage of the provincial electors is required. All these are
based with reference to the constitutional mandate.
The conduct of the initiative and referendum shall be supervised and shall be upon
the call of the Commission on Elections. However, within a period of 30 days from
receipt of the petition, the COMELEC shall determine the sufficiency of the petition,
publish the same and set the date of the referendum which shall not be earlier than
45 days but not later than 90 days from the determination by the commission of the
sufficiency of the petition. Why is this so, Mr. Speaker? The petition must first be
determined by the commission as to its sufficiency because our Constitution
requires that no bill can be approved unless it contains one subject matter. It is
conceivable that in the fervor of an initiative or referendum, Mr. Speaker, there may
be more than two topics sought to be approved and that cannot be allowed. In fact,
that is one of the prohibitions under this referendum and initiative bill. When a
matter under initiative or referendum is approved by the required number of votes,
Mr. Speaker, it shall become effective 15 days following the completion of its
publication in the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to
do is to enlarge and recognize the legislative powers of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot
be insensitive to the call for initiative and referendum. We should have done it in
1987 but that is past. Maybe we should have done it in 1988 but that too had
already passed, but it is only February 1989, Mr. Speaker, and we have enough time
this year at least to respond to the need of our people to participate directly in the
work of legislation.

For these reasons, Mr. Speaker, we urge and implore our colleagues to approve
House Bill No. 21505 as incorporated in Committee Report No. 423 of the
Committee on Suffrage and Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared text of my speech, together
with the footnotes since they contain many references to statutory history and
foreign jurisdiction, be reproduced as part of the Record for future purposes.
Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former
Representative Salvador Escudero III, viz:42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to
heed the clamor of the people for a truly popular democracy. One recalls the
impatience of those who actively participated in the parliament of the streets, some
of whom are now distinguished Members of this Chamber. A substantial segment of
the population feel increasingly that under the system, the people have the form
but not the reality or substance of democracy because of the increasingly elitist
approach of their chosen Representatives to many questions vitally affecting their
lives. There have been complaints, not altogether unfounded, that many candidates
easily forge their campaign promises to the people once elected to office. The 1986
Constitutional Commission deemed it wise and proper to provide for a means
whereby the people can exercise the reserve power to legislate or propose
amendments to the Constitution directly in case their chose Representatives fail to
live up to their expectations. That reserve power known as initiative is explicitly
recognized in three articles and four sections of the 1987 Constitution, namely:
Article VI Section 1; the same article, Section 312; Article X, Section 3; and Article
XVII, Section 2. May I request that he explicit provisions of these three articles and
four sections be made part of my sponsorship speech, Mr. Speaker.
These constitutional provisions are, however, not self-executory. There is a need for
an implementing law that will give meaning and substance to the process of
initiative and referendum which are considered valuable adjuncts to representative
democracy. It is needless to state that this bill when enacted into law will probably
open the door to strong competition of the people, like pressure groups, vested
interests, farmers' group, labor groups, urban dwellers, the urban poor and the like,
with Congress in the field of legislation.
Such probability, however, pales in significance when we consider that through this
bill we can hasten the politization of the Filipino which in turn will aid government in
forming an enlightened public opinion, and hopefully produce better and more
responsive and acceptable legislations.
Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and
cause-oriented groups an opportunity to articulate their ideas in a truly democratic
forum, thus, the competition which they will offer to Congress will hopefully be a
healthy one. Anyway, in an atmosphere of competition there are common interests
dear to all Filipinos, and the pursuit of each side's competitive goals can still take
place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished Gentleman from
Camarines Sur and this Representation filed our respective versions of the bill in
1987, we were hoping that the bill would be approved early enough so that our
people could immediately use the agrarian reform bill as an initial subject matter or
as a take-off point.
However, in view of the very heavy agenda of the Committee on Local Government,
it took sometime before the committee could act on these. But as they say in
Tagalog, huli man daw at magaling ay naihahabol din. The passage of this bill
therefore, my dear colleagues, could be one of our finest hours when we can set
aside our personal and political consideration for the greater good of our people. I
therefore respectfully urge and plead that this bill be immediately approved.
We cannot dodge the duty to give effect to this intent for the "[c]ourts have the
duty to interpret the law as legislated and when possible, to honor the clear
meaning of statutes as revealed by its language, purpose and history."43
The tragedy is that while conceding this intent, the six (6) justices, nevertheless,
ruled that "x x x R.A. No. 6735 is incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is
concerned" for the following reasons: (1) Section 2 of the Act does not suggest an
initiative on amendments to the Constitution; (2) the Act does not provide for the
contents of the petition for initiative on the Constitution; and (3) while the Act
provides subtitles for National Initiative and Referendum (Subtitle II) and for Local

Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the
Constitution.
To say the least, these alleged omissions are too weak a reason to throttle the right
of the sovereign people to amend the Constitution through initiative. R.A. 6735
clearly expressed the legislative policy for the people to propose amendments to
the Constitution by direct action. The fact that the legislature may have omitted
certain details in implementing the people's initiative in R.A. 6735, does not justify
the conclusion that, ergo, the law is insufficient. What were omitted were mere
details and not fundamental policies which Congress alone can and has determined.
Implementing details of a law can be delegated to the COMELEC and can be the
subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution,
the COMELEC has the power to enforce and administer all laws and regulations
relative to the conduct of initiatives. Its rule-making power has long been
recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down
as unconstitutional, the six (6) justices failed to give due recognition to the
indefeasible right of the sovereign people to amend the Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere amendments and
can be undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987

Constitution, only allow the use of people's initiative to amend and not to revise the
Constitution. They theorize that the changes proposed by petitioners are substantial
and thus constitute a revision which cannot be done through people's initiative.
In support of the thesis that the Constitution bars the people from proposing
substantial amendments amounting to revision, the oppositors-intervenors cite the
following deliberations during the Constitutional Commission, viz:44
MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year,
has to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The Committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on Amendment or Revision.

xxxxxxxxxxxx

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
whereas the process of initiation to amend, which is given to the public, would only
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45
MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a
proposal for amendment only, not for revision, only once every five years x x x x

on line 1 refers to "amendment." Does it cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision?"
"amendments" not "revision."
Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna

also clarified this point46 -
MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add
to "Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this
Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the Constitution by
initiative but merely by amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals, petitioners will
"change the very system of government from presidential to parliamentary, and the
form of the legislature from bicameral to unicameral," among others. They allegedly
seek other major revisions like the inclusion of a minimum number of inhabitants
per district, a change in the period for a term of a Member of Parliament, the
removal of the limits on the number of terms, the election of a Prime Minister who
shall exercise the executive power, and so on and so forth.47 In sum, oppositorsintervenors submit that "the proposed changes to the Constitution effect major
changes in the political structure and system, the fundamental powers and duties of
the branches of the government, the political rights of the people, and the modes
by which political rights may be exercised."48 They conclude that they are
substantial amendments which cannot be done through people's initiative. In other
words, they posit the thesis that only simple but not substantial amendments can
be done through people's initiative.
With due respect, I disagree. To start with, the words "simple" and "substantial" are
not subject to any accurate quantitative or qualitative test. Obviously, relying on the
quantitative test, oppositors-intervenors assert that the amendments will result in
some one hundred (100) changes in the Constitution. Using the same test, however,

it is also arguable that petitioners seek to change basically only two (2) out of the
eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative
Department) and Article VII (Executive Department), together with the
complementary provisions for a smooth transition from a presidential bicameral
system to a parliamentary unicameral structure. The big bulk of the 1987
Constitution will not be affected including Articles I (National Territory), II
(Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V
(Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local
Government), XI (Accountability of Public Officers), XII (National Economy and
Patrimony), XIII (Social Justice and Human Rights), XIV (Education, Science and
Technology, Arts, Culture, and Sports), XV (The Family), XVI (General Provisions),
and even XVII (Amendments or Revisions). In fine, we stand on unsafe ground if we
use simple arithmetic to determine whether the proposed changes are "simple" or
"substantial."
Nor can this Court be surefooted if it applies the qualitative test to determine
whether the said changes are "simple" or "substantial" as to amount to a revision of
the Constitution. The well-regarded political scientist, Garner, says that a good
constitution should contain at least three (3) sets of provisions: the constitution of
liberty which sets forth the fundamental rights of the people and imposes certain
limitations on the powers of the government as a means of securing the enjoyment
of these rights; the constitution of government which deals with the framework of
government and its powers, laying down certain rules for its administration and
defining the electorate; and, the constitution of sovereignty which prescribes the
mode or procedure for amending or revising the constitution.49 It is plain that the
proposed changes will basically affect only the constitution of government. The
constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed
changes will not change the fundamental nature of our state as "x x x a democratic
and republican state."50 It is self-evident that a unicameral-parliamentary form of
government will not make our State any less democratic or any less republican in
character. Hence, neither will the use of the qualitative test resolve the issue of
whether the proposed changes are "simple" or "substantial."
For this reason and more, our Constitutions did not adopt any quantitative or
qualitative test to determine whether an "amendment" is "simple" or "substantial."
Nor did they provide that "substantial" amendments are beyond the power of the
people to propose to change the Constitution. Instead, our Constitutions carried the
traditional distinction between "amendment" and "revision," i.e., "amendment"
means change, including complex changes while "revision" means complete
change, including the adoption of an entirely new covenant. The legal dictionaries
express this traditional difference between "amendment" and "revision." Black's
Law Dictionary defines "amendment" as "[a] formal revision or addition proposed or
made to a statute, constitution, pleading, order, or other instrument; specifically, a
change made by addition, deletion, or correction."51 Black's also refers to

"amendment" as "the process of making such a revision."52 Revision, on the other
hand, is defined as "[a] reexamination or careful review for correction or
improvement."53 In parliamentary law, it is described as "[a] general and thorough
rewriting of a governing document, in which the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" as
"[a] correction or revision of a writing to correct errors or better to state its intended
purpose"55 and "amendment of constitution" as "[a] process of proposing, passing,
and ratifying amendments to the x x x constitution."56 In contrast, "revision," when
applied to a statute (or constitution), "contemplates the re-examination of the same
subject matter contained in the statute (or constitution), and the substitution of a
new, and what is believed to be, a still more perfect rule."57
One of the most authoritative constitutionalists of his time to whom we owe a lot of
intellectual debt, Dean Vicente G. Sinco, of the University of the Philippines College
of Law, (later President of the U.P. and delegate to the Constitutional Convention of
1971) similarly spelled out the difference between "amendment" and "revision." He
opined: "the revision of a constitution, in its strict sense, refers to a consideration of
the entire constitution and the procedure for effecting such change; while
amendment refers only to particular provisions to be added to or to be altered in a
constitution."58
Our people were guided by this traditional distinction when they effected changes in
our 1935 and 1973 Constitutions. In 1940, the changes to the 1935 Constitution
which included the conversion from a unicameral system to a bicameral structure,
the shortening of the tenure of the President and Vice-President from a six-year
term without reelection to a four-year term with one reelection, and the
establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a revision.
The replacement of the 1935 Constitution by the 1973 Constitution was, however,
considered a revision since the 1973 Constitution was "a completely new
fundamental charter embodying new political, social and economic concepts."59
Among those adopted under the 1973 Constitution were: the parliamentary system
in place of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the reversion to a
single-chambered lawmaking body instead of the two-chambered, which would be
more suitable to a parliamentary system of government; the enfranchisement of the
youth beginning eighteen (18) years of age instead of twenty-one (21), and the
abolition of literacy, property, and other substantial requirements to widen the basis
for the electorate and expand democracy; the strengthening of the judiciary, the
civil service system, and the Commission on Elections; the complete nationalization
of the ownership and management of mass media; the giving of control to Philippine
citizens of all telecommunications; the prohibition against alien individuals to own

educational institutions, and the strengthening of the government as a whole to
improve the conditions of the masses.60
The 1973 Constitution in turn underwent a series of significant changes in 1976,

1980, 1981, and 1984. The two significant innovations introduced in 1976 were (1)
the creation of an interim Batasang Pambansa, in place of the interim National
Assembly, and (2) Amendment No. 6 which conferred on the President the power to
issue decrees, orders, or letters of instruction, whenever the Batasang Pambansa
fails to act adequately on any matter for any reason that in his judgment requires
immediate action, or there is grave emergency or threat or imminence thereof, with
such decrees, or letters of instruction to form part of the law of the land. In 1980,
the retirement age of seventy (70) for justices and judges was restored. In 1981, the
presidential system with parliamentary features was installed. The transfer of
private land for use as residence to natural-born citizens who had lost their
citizenship was also allowed. Then, in 1984, the membership of the Batasang
Pambansa was reapportioned by provinces, cities, or districts in Metro Manila
instead of by regions; the Office of the Vice-President was created while the
executive committee was abolished; and, urban land reform and social housing
programs were strengthened.61 These substantial changes were simply considered
as mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973
Constitution. She governed under Proclamation No. 3, known as the Freedom
Constitution.
In February 1987, the new constitution was ratified by the people in a plebiscite and
superseded the Provisional or Freedom Constitution. Retired Justice Isagani Cruz
underscored the outstanding features of the 1987 Constitution which consists of
eighteen articles and is excessively long compared to the Constitutions of 1935 and
1973, on which it was largely based. Many of the original provisions of the 1935
Constitution, particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral Congress
of the Philippines and the strictly presidential system. The independence of the
judiciary has been strengthened, with new provisions for appointment thereto and
an increase in its authority, which now covers even political questions formerly
beyond its jurisdiction. While many provisions of the 1973 Constitution were
retained, like those on the Constitutional Commissions and local governments, still
the new 1987 Constitution was deemed as a revision of the 1973 Constitution.
It is now contended that this traditional distinction between amendment and

revision was abrogated by the 1987 Constitution. It is urged that Section 1 of Article
XVII gives the power to amend or revise to Congress acting as a constituent

assembly, and to a Constitutional Convention duly called by Congress for the
purpose. Section 2 of the same Article, it is said, limited the people's right to change
the Constitution via initiative through simple amendments. In other words, the
people cannot propose substantial amendments amounting to revision.
With due respect, I do not agree. As aforestated, the oppositors-intervenors who

peddle the above proposition rely on the opinions of some Commissioners
expressed in the course of the debate on how to frame the amendment/revision
provisions of the 1987 Constitution. It is familiar learning, however, that opinions in
a constitutional convention, especially if inconclusive of an issue, are of very limited
value as explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not from the
action of the convention but from the powers (of the people) who have ratified and
adopted it.62 "Debates in the constitutional convention 'are of value as showing the
views of the individual members, and as indicating the reasons for their votes, but
they give us no light as to the views of the large majority who did not talk, much
less of the mass of our fellow citizens whose votes at the polls gave that instrument
the force of fundamental law.'"63 Indeed, a careful perusal of the debates of the
Constitutional Commissioners can likewise lead to the conclusion that there was no
abandonment of the traditional distinction between "amendment" and "revision."
For during the debates, some of the commissioners referred to the concurring
opinion of former Justice Felix Q. Antonio in Javellana v. The Executive Secretary,64
that stressed the traditional distinction between amendment and revision, thus:65
MR. SUAREZ: We mentioned the possible use of only one term and that is,
"amendment." However, the Committee finally agreed to use the terms
"amendment" or "revision" when our attention was called by the honorable VicePresident to the substantial difference in the connotation and significance between
the said terms. As a result of our research, we came up with the observations made
in the famous or notorious Javellana doctrine, particularly the decision rendered
by Honorable Justice Makasiar,66 wherein he made the following distinction
between "amendment" and "revision" of an existing Constitution: "Revision" may
involve a rewriting of the whole Constitution. On the other hand, the act of
amending a constitution envisages a change of specific provisions only. The
intention of an act to amend is not the change of the entire Constitution, but only
the improvement of specific parts or the addition of provisions deemed essential as
a consequence of new conditions or the elimination of parts already considered
obsolete or unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a

completely new fundamental Charter embodying new political, social and economic
concepts.
So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to
the new Constitution.
To further explain "revision," former Justice Antonio, in his concurring opinion, used
an analogy "When a house is completely demolished and another is erected on
the same location, do you have a changed, repaired and altered house, or do you
have a new house? Some of the material contained in the old house may be used
again, some of the rooms may be constructed the same, but this does not alter the
fact that you have altogether another or a new house."67
Hence, it is arguable that when the framers of the 1987 Constitution used the word
"revision," they had in mind the "rewriting of the whole Constitution," or the "total
overhaul of the Constitution." Anything less is an "amendment" or just "a change of
specific provisions only," the intention being "not the change of the entire
Constitution, but only the improvement of specific parts or the addition of provisions
deemed essential as a consequence of new conditions or the elimination of parts
already considered obsolete or unresponsive to the needs of the times." Under this
view, "substantial" amendments are still "amendments" and thus can be proposed
by the people via an initiative.
As we cannot be guided with certainty by the inconclusive opinions of the

Commissioners on the difference between "simple" and "substantial" amendments
or whether "substantial" amendments amounting to revision are covered by
people's initiative, it behooves us to follow the cardinal rule in interpreting
Constitutions, i.e., construe them to give effect to the intention of the people who
adopted it. The illustrious Cooley explains its rationale well, viz:68
x x x the constitution does not derive its force from the convention which framed,
but from the people who ratified it, the intent to be arrived at is that of the people,
and it is not to be supposed that they have looked for any dark or abstruse meaning
in the words employed, but rather that they have accepted them in the sense most
obvious to the common understanding, and ratified the instrument in the belief that
that was the sense designed to be conveyed. These proceedings therefore are less
conclusive of the proper construction of the instrument than are legislative
proceedings of the proper construction of a statute; since in the latter case it is the
intent of the legislature we seek, while in the former we are endeavoring to arrive at
the intent of the people through the discussion and deliberations of their
representatives. The history of the calling of the convention, the causes which led to
it, and the discussions and issues before the people at the time of the election of

the delegates, will sometimes be quite as instructive and satisfactory as anything to
be gathered form the proceedings of the convention.
Corollarily, a constitution is not to be interpreted on narrow or technical principles,

but liberally and on broad general lines, to accomplish the object of its
establishment and carry out the great principles of government not to defeat
them.69 One of these great principles is the sovereignty of the people.
Let us now determine the intent of the people when they adopted initiative as a
mode to amend the 1987 Constitution. We start with the Declaration of Principles
and State Policies which Sinco describes as "the basic political creed of the
nation"70 as it "lays down the policies that government is bound to observe."71
Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican state.
them." In a republican state, the power of the sovereign people is exercised and
delegated to their representatives. Thus in Metropolitan Transportation Service v.
Paredes, this Court held that "a republican state, like the Philippines x x x (is)
derived from the will of the people themselves in freely creating a government 'of
the people, by the people, and for the people' a representative government
through which they have agreed to exercise the powers and discharge the duties of
their sovereignty for the common good and general welfare."72
In both the 1935 and 1973 Constitutions, the sovereign people delegated to
Congress or to a convention, the power to amend or revise our fundamental law.
History informs us how this delegated power to amend or revise the Constitution
was abused particularly during the Marcos regime. The Constitution was changed
several times to satisfy the power requirements of the regime. Indeed, Amendment
No. 6 was passed giving unprecedented legislative powers to then President
Ferdinand E. Marcos. A conspiracy of circumstances from above and below,
however, brought down the Marcos regime through an extra constitutional
revolution, albeit a peaceful one by the people. A main reason for the people's
revolution was the failure of the representatives of the people to effectuate timely
changes in the Constitution either by acting as a constituent assembly or by calling
a constitutional convention. When the representatives of the people defaulted in
using this last peaceful process of constitutional change, the sovereign people
themselves took matters in their own hands. They revolted and replaced the 1973
Constitution with the 1987 Constitution.
It is significant to note that the people modified the ideology of the 1987
Constitution as it stressed the power of the people to act directly in their capacity as
sovereign people. Correspondingly, the power of the legislators to act as

representatives of the people in the matter of amending or revising the Constitution
was diminished for the spring cannot rise above its source. To reflect this significant
shift, Section 1, Article II of the 1987 Constitution was reworded. It now reads: "the
Philippines is a democratic and republican state. Sovereignty resides in the people
and all government authority emanates from them." The commissioners of the 1986
Constitutional Commission explained the addition of the word "democratic," in our
first Declaration of Principles, viz:
MR. NOLLEDO. I am putting the word "democratic" because of the provisions that
we are now adopting which are covering consultations with the people. For
example, we have provisions on recall, initiative, the right of the people even to
participate in lawmaking and other instances that recognize the validity of
interference by the people through people's organizations x x x x73
MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and,
therefore, the first sentence states: "The Philippines is a republican and democratic
state x x x x
May I know from the committee the reason for adding the word "democratic" to
"republican"? The constitutional framers of the 1935 and 1973 Constitutions were
content with "republican." Was this done merely for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize

people power and the many provisions in the Constitution that we have approved
related to recall, people's organizations, initiative and the like, which recognize the
participation of the people in policy-making in certain circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does
meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is

understood as participatory democracy. 74 (emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento and Adolfo S.

Azcuna is of the same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to
representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and
1935 Constitutions which used the words "republican state" because "republican
state" would refer to a democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people in

government.
MR. SARMIENTO. But even in the concept "republican state," we are stressing the
participation of the people x x x x So the word "republican" will suffice to cover
popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in
view of the introduction of the aspects of direct democracy such as initiative,
referendum or recall, it was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we want to add the word
"democratic" to emphasize that in this new Constitution there are instances where
the people would act directly, and not through their representatives. (emphasis
supplied)
Consistent with the stress on direct democracy, the systems of initiative,

referendum, and recall were enthroned as polestars in the 1987 Constitution. Thus,
Commissioner Blas F. Ople who introduced the provision on people's initiative
said:76
MR. OPLE. x x x x I think this is just the correct time in history when we should
introduce an innovative mode of proposing amendments to the Constitution, vesting
in the people and their organizations the right to formulate and propose their own
amendments and revisions of the Constitution in a manner that will be binding upon
the government. It is not that I believe this kind of direct action by the people for
amending a constitution will be needed frequently in the future, but it is good to
know that the ultimate reserves of sovereign power still rest upon the people and
that in the exercise of that power, they can propose amendments or revision to the
Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative as a safety valve,
as a peaceful way for the people to change their Constitution, by citing our
experiences under the Marcos government, viz:77
MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but
we are providing a channel for the expression of the sovereign will of the people
through this initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for
expression of the will of the people, particularly in the amendment or revision of the
Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know what happened during
the 20 years under the Marcos administration. So, if the National Assembly, in a
manner of speaking, is operating under the thumb of the Prime Minister or the
President as the case may be, and the required number of votes could not be
obtained, we would have to provide for a safety valve in order that the people could
ventilate in a very peaceful way their desire for amendment to the Constitution.
It is very possible that although the people may be pressuring the National
Assembly to constitute itself as a constituent assembly or to call a constitutional
convention, the members thereof would not heed the people's desire and clamor. So
this is a third avenue that we are providing for the implementation of what is now
popularly known as people's power. (emphasis supplied)
Commissioner Regalado E. Maambong opined that the people's initiative could avert
a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the Constitution could actually

avert a revolution by providing a safety valve in bringing about changes in the
Constitution through pacific means. This, in effect, operationalizes what political law
authors call the "prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which expressed
the right of the sovereign people to propose amendments to the Constitution by
direct action or through initiative. To that extent, the delegated power of Congress
to amend or revise the Constitution has to be adjusted downward. Thus, Section 1,

Article VI of the 1987 Constitution has to be reminted and now provides: "The
legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum."
Prescinding from these baseline premises, the argument that the people through
initiative cannot propose substantial amendments to change the Constitution turns
sovereignty on its head. At the very least, the submission constricts the democratic
space for the exercise of the direct sovereignty of the people. It also denigrates the
sovereign people who they claim can only be trusted with the power to propose
"simple" but not "substantial" amendments to the Constitution. According to Sinco,
the concept of sovereignty should be strictly understood in its legal meaning as it
was originally developed in law.79 Legal sovereignty, he explained, is "the
possession of unlimited power to make laws. Its possessor is the legal sovereign. It
implies the absence of any other party endowed with legally superior powers and
privileges. It is not subject to law 'for it is the author and source of law.' Legal
sovereignty is thus the equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the

people's will over the state which they themselves have created. The state is
created by and subject to the will of the people, who are the source of all political
power. Rightly, we have ruled that "the sovereignty of our people is not a kabalistic
principle whose dimensions are buried in mysticism. Its metes and bounds are
familiar to the framers of our Constitutions. They knew that in its broadest sense,
sovereignty is meant to be supreme, the jus summi imperu, the absolute right to
govern."81
James Wilson, regarded by many as the most brilliant, scholarly, and visionary
lawyer in the United States in the 1780s, laid down the first principles of popular
sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of
the United States:82
There necessarily exists, in every government, a power from which there is no

appeal, and which, for that reason, may be termed supreme, absolute, and
uncontrollable.
x x x x Perhaps some politician, who has not considered with sufficient accuracy our
political systems, would answer that, in our governments, the supreme power was
vested in the constitutions x x x x This opinion approaches a step nearer to the
truth, but does not reach it. The truth is, that in our governments, the supreme,
absolute, and uncontrollable power remains in the people. As our constitutions are

superior to our legislatures, so the people are superior to our constitutions. Indeed
the superiority, in this last instance, is much greater; for the people possess over
our constitution, control in act, as well as right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only the people is
sovereign - - - not the elected President, not the elected Congress, not this
unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be
reposed in any organ of government. Only its exercise may be delegated to any of
them. In our case, the people delegated to Congress the exercise of the sovereign
power to amend or revise the Constitution. If Congress, as delegate, can exercise
this power to amend or revise the Constitution, can it be argued that the sovereign
people who delegated the power has no power to substantially amend the
Constitution by direct action? If the sovereign people do not have this power to
make substantial amendments to the Constitution, what did it delegate to
Congress? How can the people lack this fraction of a power to substantially amend
the Constitution when by their sovereignty, all power emanates from them? It will
take some mumbo jumbo to argue that the whole is lesser than its part. Let Sinco
clinch the point:83
But although possession may not be delegated, the exercise of sovereignty often is.
It is delegated to the organs and agents of the state which constitute its
government, for it is only through this instrumentality that the state ordinarily
functions. However ample and complete this delegation may be, it is nevertheless
subject to withdrawal at any time by the state. On this point Willoughby says:
Thus, States may concede to colonies almost complete autonomy of government

and reserve to themselves a right to control of so slight and so negative a character
as to make its exercise a rare and improbable occurrence; yet so long as such right
of control is recognized to exist, and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the mother countries the
sovereignty of those mother countries over them is complete and they are to be
considered as possessing only administrative autonomy and not political
independence.
At the very least, the power to propose substantial amendments to the Constitution
is shared with the people. We should accord the most benign treatment to the
sovereign power of the people to propose substantial amendments to the
Constitution especially when the proposed amendments will adversely affect the
interest of some members of Congress. A contrary approach will suborn the public
weal to private interest and worse, will enable Congress (the delegate) to frustrate
the power of the people to determine their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses acknowledging the
right of the people to exercise initiative and referendum are liberally and generously
construed in favor of the people.84 Initiative and referendum powers must be
broadly construed to maintain maximum power in the people.85 We followed this
orientation in Subic Bay Metropolitan Authority v. Commission on Elections.86 There
is not an iota of reason to depart from it.
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the sovereign
people to amend the Constitution and their will, as expressed by the fact that over
six million registered voters indicated their support of the Petition for Initiative, is a
purely political question which is beyond even the very long arm of this Honorable
Court's power of judicial review. Whether or not the 1987 Constitution should be
amended is a matter which the people and the people alone must resolve in their
sovereign capacity."87 They argue that "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people. Hence, the
determination by the people to exercise their right to propose amendments under
the system of initiative is a sovereign act and falls squarely within the ambit of a
'political question.'"88
The petitioners cannot be sustained. This issue has long been interred by Sanidad v.
Commission on Elections, viz:89
Political questions are neatly associated with the wisdom, not the legality of a
actuation of the President would merely be a brutum fulmen. If the Constitution
was valid or not.

and the regularity of the procedure adopted for submission of the proposals to the
people ultimately lie in the judgment of the latter. A clear Descartes fallacy of
vicious cycle. Is it not that the people themselves, by their sovereign act, provided
for the authority and procedure for the amending process when they ratified the
present Constitution in 1973? Whether, therefore, that constitutional provision has
been followed or not is indisputably a proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial review, but by the
Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry must be done a priori not
a posteriori, i.e., before the submission to and ratification by the people.
In the instant case, the Constitution sets in black and white the requirements for the
exercise of the people's initiative to amend the Constitution. The amendments must
be proposed by the people "upon a petition of at least twelve per centum of the
ratification of this Constitution nor oftener than once every five years thereafter."90
Compliance with these requirements is clearly a justiciable and not a political
question. Be that as it may, how the issue will be resolved by the people is
addressed to them and to them alone.
VI
Whether the Petition for Initiative filed before the COMELEC complied with Section 2,
Article XVII of the Constitution and R.A. 6735 involves contentious issues of fact
which should first be resolved by the COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the

required number of signatures under Section 2, Article XVII of the Constitution. Said
provision requires that the petition for initiative be supported by at least twelve per
cent (12%) of the total number of registered voters, of which every legislative
district must be represented by at least three per cent (3%) of the registered voters
therein. Oppositors-intervenors contend that no proper verification of signatures
was done in several legislative districts. They assert that mere verification of the
names listed on the signature sheets without verifying the signatures reduces the
signatures submitted for their respective legislative districts to mere scribbles on a
piece of paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated

August 23, 2006 issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District
and OIC, First and Second District, Davao City, stating that his office has not verified
the signatures submitted by the proponents of the people's initiative. The
certification reads:
This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS
NOT VERIFIED the signatures of registered voters as per documents submitted in
this office by the proponents of the People's Initiative. Consequently, NO ELECTION
DOCUMENTS AND/OR ORDER ISSUED BY HIGHER SUPERIORS used as basis for such
verification of signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that
although Atty. Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First
District, Davao City, later issued certifications stating that the Office of the City
Election Officer has examined the list of individuals appearing in the signature
sheets,92 the certifications reveal that the office had verified only the names of the
signatories, but not their signatures. Oppositors-intervenors submit that not only the
names of the signatories should be verified, but also their signatures to ensure the
identities of the persons affixing their signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to

obtain the signatures of at least three per cent (3%) of the total number of
registered voters in the First Legislative District of South Cotabato. For the First
District of South Cotabato, petitioners submitted 3,182 signatures for General
Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301
signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of
said district. Antonino, however, submitted to this Court a copy of the certification
by Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing that
the signatures from Polomolok were not verified because the Book of Voters for the
whole municipality was in the custody of the Clerk of Court of the Regional Trial
Court, Branch 38, Polomolok, South Cotabato.93 Excluding the signatures from
Polomolok from the total number of signatures from the First District of South
Cotabato would yield only a total of 8,676 signatures which falls short of the three
per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise
submitted to this Court a certification issued by Atty. Stalin A. Baguio, City Election
Officer IV, Cagayan de Oro City, stating that the list of names appearing on the

signature sheets corresponds to the names of registered voters in the city, thereby
implying that they have not actually verified the signatures.94
The argument against the sufficiency of the signatures is further bolstered by

Alternative Law Groups, Inc., which submitted copies of similarly worded
certifications from the election officers from Zamboanga del Sur95 and from
Compostela Valley.96 Alternative Law Groups, Inc., further assails the regularity of
the verification process as it alleged that verification in some areas were conducted
by Barangay officials and not by COMELEC election officers. It filed with this Court
copies of certifications from Sulu and Sultan Kudarat showing that the verification
was conducted by local officials instead of COMELEC personnel.97
Petitioners, on the other hand, maintain that the verification conducted by the
election officers sufficiently complied with the requirements of the Constitution and
the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of verification in

Davao City and in Polomolok, South Cotabato, petitioner Aumentado claimed that
the same election officers cited by the oppositors-intervenors also issued
certifications showing that they have verified the signatures submitted by the
proponents of the people's initiative. He presented copies of the certifications
issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of
Davao City stating that he verified the signatures of the proponents of the people's
initiative. His certification for the Second District states:
This is to CERTIFY that this Office has examined the list of individuals as appearing
in the Signature Sheets of the Registered Voters of District II, Davao City, submitted
on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay, Centro, Davao City for
verification which consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO
(30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT
(22,668) individuals were found to be REGISTERED VOTERS, in the Computerized
List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory certification
regarding the verification process conducted in Davao City. It reads:

Regarding the verification of the signatures of registered voters, this Office has
previously issued two (2) separate certifications for the 2nd and 3rd Districts of
Davao City on April 20, 2006 and April 26, 2006, respectively, specifically relating to
the voters who supported the people's initiative. It was stated therein that the
names submitted, comprising 22,668 individual voters in the 2nd District and
18,469 individual voters in the 3rd District, were found [to] be registered voters of
the respective districts mentioned as verified by this Office based on the
Computerized List of Voters.
It must be clarified that the August 23, 2006 Certification was issued in error and by
mistake for the reason that the signature verification has not been fully completed
as of that date.
I hereby CERTIFY that this Office has examined the signatures of the voters as
appearing in the signature sheets and has compared these with the signatures
appearing in the book of voters and computerized list of voters x x x 99
Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006
issued by Polomolok Election Officer Glory D. Rubio to support their claim that said
officer had conducted a verification of signatures in said area. The certification
states:
This is to certify further, that the total 68,359 registered voters of this municipality,
as of the May 10, 2004 elections, 10,804 names with signatures were submitted for
verification and out of which 10,301 were found to be legitimate voters as per
official list of registered voters, which is equivalent to 15.07% of the total number of
registered voters of this Municipality.100
In addition to the lack of proper verification of the signatures in numerous legislative

districts, allegations of fraud and irregularities in the collection of signatures in
Makati City were cited by Senator Pimentel, among others, to wit:
(1) No notice was given to the public, for the benefit of those who may be
concerned, by the Makati COMELEC Office that signature sheets have already been
submitted to it for "verification." The camp of Mayor Binay was able to witness the
"verification process" only because of their pro-active stance;

(2) In District 1, the proponents of charter change submitted 43,405 signatures for
verification. 36,219 alleged voters' signatures (83% of the number of signatures
submitted) were rejected outright. 7,186 signatures allegedly "passed" COMELEC's
initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len
Abigail Binay, the said 7,186 signatures could not be accounted for. Atty. Binay
manually counted 2,793 signatures marked with the word "OK" and 3,443
signatures marked with a check, giving only 6,236 "apparently verified signatures."
Before the COMELEC officer issued the Certification, Atty. Binay already submitted to
the said office not less than 55 letters of "signature withdrawal," but no action was
ever taken thereon;
(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged
voters' signatures (80% of those submitted) were rejected outright. Of the 5,890
signatures which allegedly passed the COMELEC's initial scrutiny, some more will
surely fail upon closer examination;
(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel
did not know how to treat the objections and other observations coming from the
camp of Mayor Binay. The oppositors too did not know where to go for their remedy
when the COMELEC personnel merely "listened" to their objections and other
observations. As mentioned earlier, the COMELEC personnel did not even know
what to do with the many "letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other forgeries appear on
the Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature
Sheets.101
Also, there are allegations that many of the signatories did not understand what
they have signed as they were merely misled into signing the signature sheets.
Opposed to these allegations are rulings that a person who affixes his signature on
a document raises the presumption that the person so signing has knowledge of
what the document contains. Courts have recognized that there is great value in the
stability of records, so to speak, that no one should commit herself or himself to
something in writing unless she or he is fully aware and cognizant of the effect it
may have upon her on him.102 In the same vein, we have held that a person is

presumed to have knowledge of the contents of a document he has signed.103 But
as this Court is not a trier of facts, it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the constitutional
requirement that the petition for initiative be signed by at least twelve per cent
(12%) of the total number of registered voters, of which every legislative district
must be represented by at least three per cent (3%) of the registered voters therein,
involves contentious facts. Its resolution will require presentation of evidence and
their calibration by the COMELEC according to its rules. During the oral argument on
this case, the COMELEC, through Director Alioden Dalaig of its Law Department,
admitted that it has not examined the documents submitted by the petitioners in
support of the petition for initiative, as well as the documents filed by the oppositors
to buttress their claim that the required number of signatures has not been met.
The exchanges during the oral argument likewise clearly show the need for further
clarification and presentation of evidence to prove certain material facts.104
The only basis used by the COMELEC to dismiss the petition for initiative was this
Court's ruling in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to
rule on the sufficiency of the form and substance of the petition. I respectfully
submit that this issue should be properly litigated before the COMELEC where both
parties will be given full opportunity to prove their allegations.
For the same reasons, the sufficiency of the Petition for Initiative and its compliance
with the requirements of R.A. 6735 on initiative and its implementing rules is a
question that should be resolved by the COMELEC at the first instance, as it is the
body that is mandated by the Constitution to administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and
recall.105
VII
COMELEC gravely abused its discretion when it denied due course to the Lambino
and Aumentado petition.
In denying due course to the Lambino and Aumentado petition, COMELEC relied on
this Court's ruling in Santiago permanently enjoining it 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.
Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave

abuse of discretion amounting to lack of jurisdiction. The Santiago case did not
establish the firm doctrine that R.A. 6735 is not a sufficient law to implement the
constitutional provision allowing people's initiative to amend the Constitution. To
recapitulate, the records show that in the original decision, eight (8) justices106
voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted that said
law was sufficient; and one (1) justice108 abstained from voting on the issue
holding that unless and until a proper initiatory pleading is filed, the said issue is not
ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only thirteen (13)
justices resolved the motion for Justice Torres inhibited himself.110 Of the original
majority of eight (8) justices, only six (6) reiterated their ruling that R.A. 6735 was
an insufficient law. Justice Hermosisima, originally part of the majority of eight (8)
justices, changed his vote and joined the minority of five (5) justices. He opined
without any equivocation that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster; another to think
under fire to think for action upon which great interests depend." So said Justice
Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence to the
holding of the majority that "R.A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution and to have failed to provide sufficient
standard for subordinate legislation" and now to interpose my dissent thereto.
xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for
the exercise by the people of their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it
does not sanction the filing of the initiatory petition for initiative proceedings to
amend the Constitution without the required names and/or signatures of at least
12% of all the registered voters, of which every legislative district must be
represented by at least 3% of the registered voters therein. (emphasis supplied)

Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735.
In fine, the final vote on whether R.A. 6735 is a sufficient law was 6-6 with one (1)
justice inhibiting himself and another justice refusing to rule on the ground that the
issue was not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an
insufficient law failed to establish a doctrine that could serve as a precedent. Under
any alchemy of law, a deadlocked vote of six (6) is not a majority and a nonmajority cannot write a rule with precedential value. The opinion of the late Justice
Ricardo J. Francisco is instructive, viz:
As it stands, of the thirteen justices who took part in the deliberations on the issue
of whether the motion for reconsideration of the March 19, 1997 decision should be
granted or not, only the following justices sided with Mr. Justice Davide, namely:
Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan.
Justices Melo, Puno, Mendoza, Hermosisima, Panganiban and the undersigned voted
to grant the motion; while Justice Vitug "maintained his opinion that the matter was
not ripe for judicial adjudication." In other words, only five, out of the other twelve
justices, joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735
unconstitutional for its failure to pass the so called "completeness and sufficiency
standards" tests. The "concurrence of a majority of the members who actually took
part in the deliberations" which Article VII, Section 4(2) of the Constitution requires
to declare a law unconstitutional was, beyond dispute, not complied with. And even
assuming, for the sake of argument, that the constitutional requirement on the
concurrence of the "majority" was initially reached in the March 19, 1997 ponencia,
the same is inconclusive as it was still open for review by way of a motion for
reconsideration. It was only on June 10, 1997 that the constitutionality of R.A. No.
6735 was settled with finality, sans the constitutionally required "majority." The
Court's declaration, therefore, is manifestly grafted with infirmity and wanting in
force necessitating, in my view, the reexamination of the Court's decision in G.R. No.
127325. It behooves the Court "not to tarry any longer" nor waste this opportunity
accorded by this new petition (G.R. No. 129754) to relieve the Court's
pronouncement from constitutional infirmity.
The jurisprudence that an equally divided Court can never set a precedent is wellsettled. Thus, in the United States, an affirmance in the Federal Supreme Court
upon equal division of opinion is not an authority for the determination of other
cases, either in that Court or in the inferior federal courts. In Neil v. Biggers,111
which was a habeas corpus state proceeding by a state prisoner, the U.S. Supreme
Court held that its equally divided affirmance of petitioner's state court conviction
was not an "actual adjudication" barring subsequent consideration by the district
court on habeas corpus. In discussing the non-binding effect of an equal division

ruling, the Court reviewed the history of cases explicating the disposition "affirmed
by an equally divided Court:"
In this light, we review our cases explicating the disposition "affirmed by an equally
divided Court." On what was apparently the first occasion of an equal division, The
Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point
of division without much discussion. Id., at 126-127. Faced with a similar division
during the next Term, the Court again affirmed, Chief Justice Marshall explaining
that "the principles of law which have been argued, cannot be settled; but the
judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of
United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in
such cases, it is the appellant or petitioner who asks the Court to overturn a lower
court's decree. "If the judges are divided, the reversal cannot be had, for no order
can be made. The judgment of the court below, therefore, stands in full force. It is
indeed, the settled practice in such case to enter a judgment of affirmance; but this
is only the most convenient mode of expressing the fact that the cause is finally
disposed of in conformity with the action of the court below, and that that court can
proceed to enforce its judgment. The legal effect would be the same if the appeal,
or writ of error, were dismissed." Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154
(1869). Nor is an affirmance by an equally divided Court entitled to precedential
weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed.
2d 1708 (1960).xxx"
This doctrine established in Neil has not been overturned and has been cited with
approval in a number of subsequent cases,112 and has been applied in various
state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a
putative father sought to set aside a decree granting petition for adoption of an
Indian child on grounds of noncompliance with the requirements of Indian Child
Welfare Act (ICWA), the Supreme Court of Alaska held that its decision in In re
Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion supporting holding that
an action such as the putative father's would be governed by the state's one-year
statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of
the justices sitting did not agree on a common rationale, as two of four participating
justices agreed that the state's one-year statute of limitations applied, one justice
concurred in the result only, and one justice dissented. There was no "narrower"
reasoning agreed upon by all three affirming justices. The concurring justice
expressed no opinion on the statute of limitations issue, and in agreeing with the
result, he reasoned that ICWA did not give the plaintiff standing to sue.115 The twojustice plurality, though agreeing that the state's one-year statute of limitations
applied, specifically disagreed with the concurring justice on the standing issue.116
Because a majority of the participating justices in T.N.F. did not agree on any one

ground for affirmance, it was not accorded stare decisis effect by the state Supreme
Court.
The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does
not apply to plurality decisions in which no majority of the justices participating
agree to the reasoning and as such are not authoritative interpretations binding on
the Supreme Court.117
In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally

divided opinion on the matter,119 held that chapter 15938, Acts of 1933 must be
allowed to stand, dismissing a quo warranto suit without prejudice. The Court held:
In a cause of original jurisdiction in this court a statute cannot be declared

unconstitutional nor its enforcement nor operation judicially interfered with, except
by the concurrence of a majority of the members of the Supreme Court sitting in the
cause wherein the constitutionality of the statute is brought in question or judicial
relief sought against its enforcement. Section 4 of Article 5, state Constitution.
Therefore in this case the concurrence of a majority of the members of this court in
holding unconstitutional said chapter 15938, supra, not having been had, it follows
that the statute in controversy must be allowed to stand and accordingly be
permitted to be enforced as a presumptively valid act of the Legislature, and that
this proceeding in quo warranto must be dismissed without prejudice. Spencer v.
Hunt (Fla.) 147 So. 282. This decision is not to be regarded as a judicial precedent
on the question of constitutional law involved concerning the constitutionality vel
non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.
Quo warranto proceeding dismissed without prejudice by equal division of the court
on question of constitutionality of statute involved.
In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by
an equally divided vote of a decision of the New York Court of Appeals that property
of a New York branch of a Russian insurance company was outside the scope of the
Russian Soviet government's decrees terminating existence of insurance companies
in Russia and seizing their assets, while conclusive and binding upon the parties as
respects the controversy in that action, did not constitute an authoritative
"precedent."

In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in
holding that printed lyrics which had the same meter as plaintiffs' lyrics, but which
were in form a parody of the latter, did not constitute infringement of plaintiffs'
copyrights, ruled that the prior case of Benny v. Loew's, Inc.,122 which was affirmed
by an equally divided court, was not binding upon it, viz:
Under the precedents of this court, and, as seems justified by reason as well as by
authority, an affirmance by an equally divided court is as between the parties, a
conclusive determination and adjudication of the matter adjudged; but the
principles of law involved not having been agreed upon by a majority of the court
sitting prevents the case from becoming an authority for the determination of other
cases, either in this or in inferior courts.123
In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois

dismissed the appeal as it was unable to reach a decision because two judges
recused themselves and the remaining members of the Court were so divided, it
was impossible to secure the concurrence of four judges as is constitutionally
required. The Court followed the procedure employed by the U.S. Supreme Court
when the Justices of that Court are equally divided, i.e. affirm the judgment of the
court that was before it for review. The affirmance is a conclusive determination and
adjudication as between the parties to the immediate case, it is not authority for the
determination of other cases, either in the Supreme Court or in any other court. It is
not "entitled to precedential weight." The legal effect of such an affirmance is the
same as if the appeal was dismissed.125
The same rule is settled in the English Courts. Under English precedents,126 an
affirmance by an equally divided Court is, as between the parties, a conclusive
determination and adjudication of the matter adjudged; but the principles of law
involved not having been agreed upon by a majority of the court sitting prevents
the case from becoming an authority for the determination of other cases, either in
that or in inferior courts.
After a tour of these cases, we can safely conclude that the prevailing doctrine is
that, the affirmance by an equally divided court merely disposes of the present
controversy as between the parties and settles no issue of law; the affirmance
leaves unsettled the principle of law presented by the case and is not entitled to
precedential weight or value. In other words, the decision only has res judicata and
not stare decisis effect. It is not conclusive and binding upon other parties as
respects the controversies in other actions.

Let us now examine the patent differences between the petition at bar and the
Delfin Petition in the Santiago case which will prevent the Santiago ruling from
binding the present petitioners. To start with, the parties are different. More
importantly, the Delfin Petition did not contain the signatures of the required
number of registered voters under the Constitution: the requirement that twelve per
cent (12%) of all the registered voters in the country wherein each legislative
district is represented by at least three per cent (3%) of all the registered voters
therein was not complied with. For this reason, we ruled unanimously that it was not
the initiatory petition which the COMELEC could properly take cognizance of. In
contrast, the present petition appears to be accompanied by the signatures of the
required number of registered voters. Thus, while the Delfin Petition prayed that an
Order be issued fixing the time and dates for signature gathering all over the
country, the Lambino and Aumentado petition, prayed for the calling of a plebiscite
to allow the Filipino people to express their sovereign will on the proposition.
COMELEC cannot close its eyes to these material differences.
Plainly, the COMELEC committed grave abuse of discretion amounting to lack of

jurisdiction in denying due course to the Lambino and Aumentado petition on the
basis of its mistaken notion that Santiago established the doctrine that R.A. 6735
was an insufficient law. As aforestressed, that ruling of six (6) justices who do not
represent the majority lacks precedential status and is non-binding on the present
petitioners.
The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we
dismissed the PIRMA petition on the principle of res judicata. This was stressed by
former Chief Justice Hilario G. Davide Jr., viz:
The following are my reasons as to why this petition must be summarily dismissed:
First, it is barred by res judicata. No one aware of the pleadings filed here and in
Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the
fact that the former is substantially identical to the latter, except for the reversal of
the roles played by the principal parties and inclusion of additional, yet not
indispensable, parties in the present petition. But plainly, the same issues and
reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,

MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization
duly organized and existing under Philippine laws with office address at Suite 403,
Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO

PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to undertake the signature
drive for a people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at
the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenorpetitioner therein. Delfin alleged in his petition that he was a founding member of
the Movement for People's Initiative, and under footnote no. 6 of the decision, it was
noted that said movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the
petition in Santiago, the PEDROSAS did not deny that they were founding members
of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that
they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the
PEDROSAS, as well as the others joining them, from the operation of the principle of
res judicata, which needs no further elaboration. (emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former judgment must be final;
(2) it must have been rendered by a court having jurisdiction over the subject
matter and the parties; (3) it must be a judgment on the merits; and (4) there must
be between the first and second actions identity of parties, identity of subject
matter, and identity of causes of action.127
Applying these principles in the instant case, we hold that all the elements of res
judicata are present. For sure, our Decision in Santiago v. COMELEC, which was
promulgated on 19 March 1997, and the motions for reconsideration thereof denied
with finality on 10 June 1997, is undoubtedly final. The said Decision was rendered
by this Court which had jurisdiction over the petition for prohibition under Rule 65.
Our judgment therein was on the merits, i.e., rendered only after considering the
evidence presented by the parties as well as their arguments in support of their
respective claims and defenses. And, as between Santiago v. COMELEC case and
COMELEC Special Matter No. 97-001 subject of the present petition, there is identity
of parties, subject matter and causes of action.

Petitioners contend that the parties in Santiago v. COMELEC are not identical to the
parties in the instant case as some of the petitioners in the latter case were not
parties to the former case. However, a perusal of the records reveals that the
parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S. Delfin, spouses
Alberto and Carmen Pedrosa, in their capacities as founding members of PIRMA, as
well as Atty. Pete Quirino-Quadra, another founding member of PIRMA, representing
PIRMA, as respondents. In the instant case, Atty. Delfin was never removed, and the
spouses Alberto and Carmen Pedrosa were joined by several others who were made
parties to the petition. In other words, what petitioners did was to make it appear
that the PIRMA Petition was filed by an entirely separate and distinct group by
removing some of the parties involved in Santiago v. COMELEC and adding new
parties. But as we said in Geralde v. Sabido128-
A party may not evade the application of the rule of res judicata by simply including
additional parties in the subsequent case or by not including as parties in the later
case persons who were parties in the previous suit. The joining of new parties does
not remove the case from the operation of the rule on res judicata if the party
against whom the judgment is offered in evidence was a party in the first action;
otherwise, the parties might renew the litigation by simply joining new parties.
The fact that some persons or entities joined as parties in the PIRMA petition but
were not parties in Santiago v. COMELEC does not affect the operation of the prior
judgment against those parties to the PIRMA Petition who were likewise parties in
Santiago v. COMELEC, as they are bound by such prior judgment.
Needless to state, the dismissal of the PIRMA petition which was based on res
judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the great Chief Justice
John Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129
Our Constitution is not a mere collection of slogans. Every syllable of our
Constitution is suffused with significance and requires our full fealty. Indeed, the rule
of law will wither if we allow the commands of our Constitution to underrule us.

The first principle enthroned by blood in our Constitution is the sovereignty of the
people. We ought to be concerned with this first principle, i.e., the inherent right of
the sovereign people to decide whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right to make decisions
for the people and our Constitution clearly and categorically says it is no other than
the people themselves from whom all government authority emanates. This right of
the people to make decisions is the essence of sovereignty, and it cannot receive
any minimalist interpretation from this Court. If there is any principle in the
Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of
the people to decide.
This Court should always be in lockstep with the people in the exercise of their
sovereignty. Let them who will diminish or destroy the sovereign right of the people
to decide be warned. Let not their sovereignty be diminished by those who belittle
their brains to comprehend changes in the Constitution as if the people themselves
are not the source and author of our Constitution. Let not their sovereignty be
destroyed by the masters of manipulation who misrepresent themselves as the
spokesmen of the people.
Be it remembered that a petition for people's initiative that complies with the
requirement that it "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" is but the first step in a long journey towards the
amendment of the Constitution. Lest it be missed, the case at bar involves but a
proposal to amend the Constitution. The proposal will still be debated by the people
and at this time, there is yet no fail-safe method of telling what will be the result of
the debate. There will still be a last step to the process of amendment which is the
ratification of the proposal by a majority of the people in a plebiscite called for the
purpose. Only when the proposal is approved by a majority of the people in the
plebiscite will it become an amendment to the Constitution. All the way, we cannot
tie the tongues of the people. It is the people who decide for the people are not an
obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them. Let us heed them.
Let us not only sing paens to the people's sovereignty. Yes, it is neither too soon nor
too late to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the
Commission on Elections dated August 31, 2006, denying due course to the Petition
for Initiative filed by Raul L. Lambino and Erico B. Aumentado in their own behalf
and together with some 6.3 million registered voters who affixed their signatures

thereon and to REMAND the petition at bar to the Commission on Elections for
further proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153
October 25, 2006

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE
PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND
GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, PetitionersIntervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L.
QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR.,
ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN
MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE,
GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO
M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS,
and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR.,
and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITOESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH
EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE
PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ,
BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and RANDALL
C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG,

Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe,
Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
QUISUMBING, J.:
1. With due respect to the main opinion written by J. Antonio T. Carpio, and the
dissent of J. Reynato S. Puno, I view the matter before us in this petition as one
mainly involving a complex political question.1 While admittedly the present
Constitution lays down certain numerical requirements for the conduct of a People's
Initiative, such as the percentages of signatures being 12% of the total number of
registered voters, provided each legislative district is represented by at least 3%
they are not the main points of controversy. Stated in simple terms, what this Court
must decide is whether the Commission on Elections gravely abused its discretion
when it denied the petition to submit the proposed changes to the Constitution
directly to the vote of the sovereign people in a plebiscite. Technical questions, e.g.
whether petitioners should have filed a Motion for Reconsideration before coming to
us, are of no moment in the face of the transcendental issue at hand. What deserve
our full attention are the issues concerning the applicable rules as well as statutory
and constitutional limitations on the conduct of the People's Initiative.
2. It must be stressed that no less than the present Constitution itself empowers the
people to "directly" propose amendments through their own "initiative." The subject
of the instant petition is by way of exercising that initiative in order to change our
form of government from presidential to parliamentary. Much has been written
about the fulsome powers of the people in a democracy. But the most basic
concerns the idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative, the

people have the sovereign right to change the present Constitution. Whether the
initial moves are done by a Constitutional Convention, a Constitutional Assembly, or
a People's Initiative, in the end every amendment -- however insubstantial or radical
-- must be submitted to a plebiscite. Thus, it is the ultimate will of the people
expressed in the ballot, that matters.2
3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs.
Lambino, et al. For the COMELEC was just relying on precedents, with the common
understanding that, pursuant to the cases of Santiago v. COMELEC3 and PIRMA v.
COMELEC,4 the COMELEC had been permanently enjoined from entertaining any
petition for a people's initiative to amend the Constitution by no less than this
Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I
could not hold the COMELEC liable for grave abuse of discretion when they merely
relied on this Court's unequivocal rulings. Of course, the Santiago and the PIRMA
decisions could be reviewed and reversed by this Court, as J. Reynato S. Puno
submits now. But until the Court does so, the COMELEC was duty bound to respect
and obey this Court's mandate, for the rule of law to prevail.
4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs.
Lambino and Aumentado and 6.327 million voters, for further examination of the
factual requisites before a plebiscite is conducted. On page 4 of the assailed
Resolution of the respondent dated August 31, 2006, the COMELEC tentatively
expressed its view that "even if the signatures in the instant Petition appear to meet
the required minimum per centum of the total number of registered voters", the
COMELEC could not give the Petition due course because of our view that R.A. No.
6735 was inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly
ponencia. Now that we have revisited the Santiago v. COMELEC decision, there is
only one clear task for COMELEC. In my view, the only doable option left for the
COMELEC, once factual issues are heard and resolved, is to give due course to the
petition for the initiative to amend our Constitution so that the sovereign people can
vote on whether a parliamentary system of government should replace the present
presidential system.
5. I am therefore in favor of letting the sovereign people speak on their choice of the
form of government as a political question soonest. (This I say without fear of media
opinion that our judicial independence has been tainted or imperiled, for it is not.)
Thus I vote for the remand of the petition. Thereafter, as prayed for, COMELEC
should forthwith certify the Petition as sufficient in form and substance and call for
the holding of a plebiscite within the period mandated by the basic law, not earlier
than sixty nor later than ninety days from said certification. Only a credible
plebiscite itself, conducted peacefully and honestly, can bring closure to the instant
political controversy.
LEONARDO A. QUISUMBING
Associate Justice
____________________
EN BANC
G. R. No. 174153
October 25, 2006

VOTERS, petitioners,
vs.
G. R. No. 174299
October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG,
petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS,
SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CORONA, J.:

The life of the law is not logic but experience.1 Our collective experience as a nation
breathes life to our system of laws, especially to the Constitution. These cases
promise to significantly contribute to our collective experience as a nation. Fealty to
the primary constitutional principle that the Philippines is not merely a republican
State but a democratic one as well behooves this Court to affirm the right of the
people to participate directly in the process of introducing changes to their
fundamental law. These petitions present such an opportunity. Thus, this is an
opportune time for this Court to uphold the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained
the rationale for upholding the people's initiative. However, I wish to share my own
thoughts on certain matters I deem material and significant.
Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition
The COMELEC denied the petition for initiative filed by petitioners purportedly on
the basis of this Court's ruling in Santiago v. COMELEC2 that: (1) RA 6753 was
inadequate to cover the system of initiative regarding amendments to the
Constitution and (2) the COMELEC was permanently enjoined from entertaining or
taking cognizance of any petition for initiative regarding amendments to the
Constitution until a sufficient law was validly enacted to provide for the
implementation of the initiative provision.
However, Santiago should not apply to this case but only to the petition of Delfin in
1997. It would be unreasonable to make it apply to all petitions which were yet
unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition
alone.
Those who oppose the exercise of the people's right to initiate changes to the
Constitution via initiative claim that Santiago barred any and all future petitions for
initiative by virtue of the doctrines of stare decisis and res judicata. The argument is
flawed.
The ponencia of Mr. Justice Puno has amply discussed the arguments relating to
stare decisis. Hence, I will address the argument from the viewpoint of res judicata.
Res judicata is the rule that a final judgment rendered by a court of competent
jurisdiction on the merits is conclusive as to the rights of the parties and their

privies and, as to them, constitutes an absolute bar to a subsequent action
involving the same claim, demand or cause of action.3 It has the following
requisites: (1) the former judgment or order must be final; (2) it must have been
rendered by a court having jurisdiction of the subject matter and of the parties; (3)
it must be a judgment or order on the merits and (4) there must be identity of
parties, of subject matter, and of cause of action between the first and second
actions.4
There is no identity of parties in Santiago and the instant case. While the COMELEC
was also the respondent in Santiago, the petitioners in that case and those in this
case are different. More significantly, there is no identity of causes of action in the
two cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section
4 of Article VII and Section 8 of Article X of the Constitution while the present
petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion
when it ruled that the present petition for initiative was barred by Santiago and, on
that ground, dismissed the petition.
The present petition and that in Santiago are materially different from each other.
They are not based on the same facts. There is thus no cogent reason to frustrate
and defeat the present direct action of the people to exercise their sovereignty by
proposing changes to their fundamental law.
People's Initiative Should Not

Be Subjected to Conditions
People's initiative is an option reserved by the people for themselves exclusively.

Neither Congress nor the COMELEC has the power to curtail or defeat this exclusive
power of the people to change the Constitution. Neither should the exercise of this
power be made subject to any conditions, as some would have us accept.
Oppositors to the people's initiative point out that this Court ruled in Santiago that
RA 6735 was inadequate to cover the system of initiative on amendments to the
Constitution and, thus, no law existed to enable the people to directly propose
changes to the Constitution. This reasoning is seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It

was unprecedented and dangerously transgressed the domain reserved to the
legislature.
While the legislature is authorized to establish procedures for determining the

validity and sufficiency of a petition to amend the constitution,5 that procedure
cannot unnecessarily restrict the initiative privilege.6 In the same vein, this Court
cannot unnecessarily and unreasonably restrain the people's right to directly
propose changes to the Constitution by declaring a law inadequate simply for lack
of a sub-heading and other grammatical but insignificant omissions. Otherwise, the
constitutional intent to empower the people will be severely emasculated, if not
rendered illusory.
People's Right and Power to Propose Changes to the Constitution Directly Should not
be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are mere representative

bodies, can propose changes to the Constitution, there is no reason why the
supreme body politic itself the people may not do so directly.
Resort to initiative to amend the constitution or enact a statute is an exercise of

"direct democracy" as opposed to "representative democracy." The system of
initiative allows citizens to directly propose constitutional amendments for the
general electorate to adopt or reject at the polls, particularly in a plebiscite. While
representative government was envisioned to "refine and enlarge the public views,
by passing them through the medium of a chosen body of citizens, whose wisdom
may best discern the true interest of their country, and whose patriotism and love of
justice will be least likely to sacrifice it to temporary or partial considerations,"7 the
exercise of "direct democracy" through initiative reserves direct lawmaking power to
the people by providing them a method to make new laws via the constitution, or
alternatively by enacting statutes.8 Efforts of the represented to control their
representatives through initiative have been described as curing the problems of
democracy with more democracy.9
The Constitution celebrates the sovereign right of the people and declares that
"sovereignty resides in the people and all government authority emanates from
them."10 Unless the present petition is granted, this constitutional principle will be
nothing but empty rhetoric, devoid of substance for those whom it seeks to
empower.
The right of the people to pass legislation and to introduce changes to the
Constitution is a fundamental right and must be jealously guarded.11 The people
should be allowed to directly seek redress of the problems of society and

representative democracy with the constitutional tools they have reserved for their
use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT,
ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION,
INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN
V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE
QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL
BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN,
LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY
SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO
AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER
AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and
PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L.

SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299 entitled

Petitioners
vs.
Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid,
inimitable lucidity, and luminous scholarship are all so characteristic of the author
that it is hardly a waste of pen and ink to write separately if only to express my
deep admiration for his disquisition. It is compelling because it derives from the
fundamental democratic ordinance that sovereignty resides in the people, and it
seeks to effectuate that principle through the actual empowerment of the sovereign
people. Justice Puno's opinion will in the short term engender reactions on its impact
on present attempts to amend the Constitution, but once the political passion of the
times have been shorn, it will endure as an unequivocal message to the taongbayan
that they are to be trusted to chart the course of their future.
Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately
to highlight a few other points which also inform my vote to grant the petitions.
I.

I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had
not acquired value as precedent and should be reversed in any case. I add that the
Court has long been mindful of the rule that it necessitates a majority, and not
merely a plurality, in order that a decision can stand as precedent. That principle
has informed the members of this Court as they deliberated and voted upon
contentious petitions, even if this consideration is not ultimately reflected on the
final draft released for promulgation.
The curious twist to Santiago and PIRMA is that for all the denigration heaped upon
Rep. Act No. 6735 in those cases, the Court did not invalidate any provision of the
statute. All the Court said then was that the law was "inadequate". Since this
"inadequate" law was not annulled by the Court, or repealed by Congress, it
remained part of the statute books.3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago
should not have simply let the insufficiency stand given that it was not minded to
invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or insufficiency
of the laws."4 As explained by the Court recently in Reyes v. Lim,5 "[Article 9] calls
for the application of equity, which[, in the revered Justice Cardozo's words,] 'fills
the open spaces in the law.'"6 Certainly, any court that refuses to rule on an action
premised on Rep. Act No. 6735 on the ground that the law is "inadequate" would
have been found in grave abuse of discretion. The previous failure by the Court to
"fill the open spaces" in Santiago further highlights that decision's status as an
unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of having recently
decried a majority ruling that was clearly minded to reverse several precedents but
refused to explicitly say so.7 Yet the principle is not immutable.8 The passionate
words of Chief Justice Panganiban in Osmea v. COMELEC9 bear quoting:
Before I close, a word about stare decisis. In the present case, the Court is
maintaining the ad ban to be consistent with its previous holding in NPC vs.
Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I
submit, however, that more important than consistency and stability are the verity,
integrity and correctness of jurisprudence. As Dean Roscoe Pound explains, "Law
must be stable but it cannot stand still." Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic should not be
perpetuated. After all, the Supreme Court, in many cases, has deviated from stare
decisis and reversed previous doctrines and decisions.10 It should do no less in the
present case.11
Santiago established a tenet that the Supreme Court may affirm a law as
constitutional, yet declare its provisions as inadequate to accomplish the legislative
purpose, then barred the enforcement of the law. That ruling is erroneous, illogical,
and should not be perpetuated.
II.
Following Justice Puno's clear demonstration why Santiago should not be respected
as precedent, I agree that the COMELEC's failure to take cognizance of the petitions
as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion correctible
through the petitions before this Court.
The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v.
COMELEC13, and Sambarani v. COMELEC14 that "the functions of the COMELEC
under the Constitution are essentially executive and administrative in nature".15
More pertinently, in Buac v. COMELEC16, the Court held that the jurisdiction of the
COMELEC relative to the enforcement and administration of a law relative to a
plebiscite fell under the jurisdiction of the poll body under its constitutional mandate
"to enforce and administer all laws and regulations relative to the conduct of a xxx
plebiscite".17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of
the COMELEC under Rep. Act No. 6735 is to enforce and administer the said law,
functions that are essentially executive and administrative in nature. Even the
subsequent duty of the COMELEC of determining the sufficiency of the petitions
after they have been filed is administrative in character. By any measure, the
COMELEC's failure to perform its executive and administrative functions under Rep.
Act No. 6735 constitutes grave abuse of discretion.
III.
It has been argued that the subject petitions for initiative are barred under Republic
Act No. 6735 as they allegedly embrace more than one subject. Section 10 of Rep.
Act No. 6735 classifies as a "prohibited measure," a petition submitted to the
electorate that embraces more than one subject.18 On this point, reliance is
apparently placed on the array of provisions which are to be affected by the
amendments proposed in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional

principle that the laws passed by Congress "shall embrace only one subject which
shall be expressed in the title thereof".19 The one-subject requirement under the
Constitution is satisfied if all the parts of the statute are related, and are germane to
the subject matter expressed in the title, or as long as they are not inconsistent with
or foreign to the general subject and title.20 An act having a single general subject,
indicated in the title, may contain any number of provisions, no matter how diverse
they may be, so long as they are not inconsistent with or foreign to the general
subject, and may be considered in furtherance of such subject by providing for the
method and means of carrying out the general object.21
The precedents governing the one-subject, one-title rule under the Constitution
should apply as well in the interpretation of Section 10 of Rep. Act No. 6735. For as
long as it can be established that an initiative petition embraces a single general
subject, the petition may be allowed no matter the number of constitutional
provisions proposed for amendment if the amendments are germane to the subject
of the petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the
changing of the form of government from bicameral-presidential to unicameralparliamentary. Such a proposal may strike as comprehensive, necessitating as it will
the reorganization of the executive and legislative branches of government,
nevertheless it ineluctably encompasses only a single general subject still.
The 1987 Constitution (or any constitution for that matter) is susceptible to division
into several general spheres. To cite the broadest of these spheres by way of
example, Article III enumerates the guaranteed rights of the people under the Bill of
Rights; Articles VI, VII and VIII provide for the organizational structure of
government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy principles
of the State. What would clearly be prohibited under Section 10 of Rep. Act No.
6735 is an initiative petition that seeks to amend provisions which do not belong to
the same sphere. For example, had a single initiative petition sought not only to
change the form of government from presidential to parliamentary but also to
amend the Bill of Rights, said petition would arguably have been barred under
Section 10, as that petition ostensibly embraces more than one subject, with each
subject bearing no functional relation to the other. But that is not the case with the
present initiative petitions.
Neither can it be argued that the initiative petitions embrace more than one subject
since the proposed amendments seek to affect two separate branches of

government. The very purpose of the initiative petitions is to fuse the powers of the
executive and legislative branches of government; hence, the amendments
intended to effect such general intent necessarily affects the two branches. If it
required that to propose a shift in government from presidential to parliamentary,
the amendments to Article VII (Executive Branch) have to be segregated to a
different petition from that which would propose amendments to Article VI
(Legislative Branch), then the result would be two initiative petitions both subject
to separate authentications, consideration and even plebiscites, all to effect one
general proposition. This scenario, which entertains the possibility that one petition
would ultimately fail while the other succeeds, could thus allow for the risk that the
executive branch could be abolished without transferring executive power to the
legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings of Section 10.
The Constitution indubitably grants the people the right to seek amendment of the
charter through initiative, and mandates Congress to "provide for the
implementation of the exercise of this right." In doing so, Congress may not restrict
the right to initiative on grounds that are not provided for in the Constitution. If for
example the implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition should not be
sustained. Congress is tasked with the implementation, and not the restriction of
the right to initiative.
The one-subject requirement under Section 10 is not provided for as a bar to

amendment under the Constitution. Arguments can be supplied for the merit of
such a requirement, since it would afford a measure of orderliness when the vital
question of amending the Constitution arises. The one-subject requirement does
allow the voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract from the fact
that the one-subject requirement imposes an additional restriction on the right to
initiative not contemplated by the Constitution. Short of invalidating the
requirement, a better course of action would be to insist upon its liberal
interpretation. After all, the Court has consistently adhered to a liberal interpretation
of the one-subject, one-title rule.22 There is no cause to adopt a stricter
interpretative rule with regard to the one-subject rule under Section 10 of Rep. Act
No. 6735.
IV.
During the hearing on the petitions, the argument was raised that provisions of the
Constitution amended through initiative would not have the benefit of a reference
source from the record of a deliberative body such as Congress or a constitutional

convention. It was submitted that this consideration influenced the Constitutional
Commission as it drafted Section 2, Article XVII, which expressly provided that only
amendments, and not revisions, may be the subject of initiative petitions.
This argument clearly proceeds from a premise that accords supreme value to the
record of deliberations of a constitutional convention or commission in the
interpretation of the charter. Yet if the absence of a record of deliberations stands as
so serious a flaw as to invalidate or constrict processes which change a constitution
or its provisions, then the entire initiative process authorized by the Constitution
should be scarlet-marked as well.
Even if this position can be given any weight in the consideration of these petitions,
I would like to point out that resort to the records of deliberations is only one of
many aids to constitutional construction. For one, it should be abhorred if the
provision under study is itself clear, plain, and free from ambiguity. As the Court
held in Civil Liberties Union v. Executive Secretary:23
While it is permissible in this jurisdiction to consult the debates and proceedings of

the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning
is clear. Debates in the constitutional convention "are of value as showing the views
of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk . . . We think it
safer to construe the constitution from what appears upon its face."24
Even if there is need to refer to extrinsic sources in aid of constitutional

interpretation, the constitutional record does not provide the exclusive or definitive
answer on how to interpret the provision. The intent of a constitutional convention is
not controlling by itself, and while the historical discussion on the floor of the
constitutional convention is valuable, it is not necessarily decisive. The Court has
even held in Vera v. Avelino25 that "the proceedings of the [constitutional]
convention are less conclusive of the proper construction of the fundamental law
than are legislative proceedings of the proper construction of a statute, since in the
latter case it is the intent of the legislature that courts seek, while in the former
courts are endeavoring to arrive at the intent of the people through the discussions
and deliberations of their representatives."26 The proper interpretation of a
constitution depends more on how it was understood by the people adopting it than
the framers' understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of
any amendments adopted via initiative, such absence would not preclude the courts
from interpreting such amendments in a manner consistent with how courts
generally construe the Constitution. For example, reliance will be placed on the
other provisions of the Constitution to arrive at a harmonized and holistic
constitutional framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the sufficiency of the
initiative petitions should be remanded to the COMELEC. Rep. Act No. 6735 clearly
reposes on the COMELEC the task of determining the sufficiency of the petitions,
including the ascertainment of whether twelve percent (12%) of all registered
voters, including three percent (3%) of registered voters in every legislative district
have indeed signed the initiative petitions.28 It should be remembered that the
COMELEC had dismissed the initiative petitions outright, and had yet to undertake
the determination of sufficiency as required by law.
It has been suggested to the end of leading the Court to stifle the initiative petitions
that the Court may at this juncture pronounce the initiative petitions as insufficient.
The derivation of the factual predicates leading to the suggestion is uncertain,
considering that the trier of facts, the COMELEC in this instance, has yet to
undertake the necessary determination. Still, the premise has been floated that
petitioners have made sufficient admissions before this Court that purportedly
established the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question that we should
ask, I submit, is whether it serves well on the Court to usurp trier of facts even
before the latter exercises its functions? If the Court, at this stage, were to declare
the petitions as insufficient, it would be akin to the Court pronouncing an accused
as guilty even before the lower court trial had began.
Matugas v. COMELEC29 inveighs against the propriety of the Court

uncharacteristically assuming the role of trier of facts, and resolving factual
questions not previously adjudicated by the lower courts or tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing

new evidence before this Court, which in any case is not a trier of facts, and then
ask it to substitute its own judgment and discretion for that of the COMELEC.
The rule in appellate procedure is that a factual question may not be raised for the
first time on appeal, and documents forming no part of the proofs before the
appellate court will not be considered in disposing of the issues of an action. This is
true whether the decision elevated for review originated from a regular court or an
administrative agency or quasi-judicial body, and whether it was rendered in a civil
case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is
simply not in accord with orderly justice.30
Any present determination by the Court on the sufficiency of the petitions

constitutes in effect a trial de novo, the Justices of the Supreme Court virtually
descending to the level of trial court judges. This is an unbecoming recourse, and it
simply is not done.
VI.
The worst position this Court could find itself in is to acquiesce to a plea that it make
the choice whether to amend the Constitution or not. This is a matter which should
not be left to fifteen magistrates who have not been elected by the people to make
the choice for them.
A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is
merely a vote to allow the people to directly exercise that option. In fact, the
position of Justice Puno which I share would not even guarantee that the Lambino
and Sigaw ng Bayan initiative petitions would be submitted to the people in a
referendum. The COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll body in
considering the sufficiency of the petitions is whether twelve percent (12%) of all
registered voters nationwide, including three percent (3%) of registered voters in
every legislative district, have indeed signed the initiative petitions.31
And even should the COMELEC find the initiative petitions sufficient, the matter of
whether the Constitution should be amended would still depend on the choice of the
electorate. The oppositors are clearly queasy about some of the amendments
proposed, or the imputed motives behind the amendments. A referendum, should
the COMELEC find the petitions as sufficient, would allow them to convey their
uneasiness to the public at large, as well as for the proponents of the amendment to
defend their proposal. The campaign period alone would allow the public to be
involved in the significant deliberation on the course our nation should take, with
the ensuing net benefit of a more informed, more politically aware populace. And of

course, the choice on whether the Constitution should be amended would lie
directly with the people. The initiative process involves participatory democracy at
its most elemental; wherein the consequential debate would not be confined to the
august halls of Congress or the hallowed chambers of this Court, as it would spill
over to the public squares and town halls, the academic yards and the Internet
blogosphere, the dining areas in the homes of the affluent and the impoverished
alike.
The prospect of informed and widespread discussion on constitutional change

engaged in by a people who are actually empowered in having a say whether these
changes should be enacted, gives fruition to the original vision of pure democracy,
as formulated in Athens two and a half millennia ago. The great hero of Athenian
democracy, Pericles, was recorded as saying in his famed Funeral Oration, "We
differ from other states in regarding the man who keeps aloof from public life not as
'private' but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts are
foredoomed to failure when undertaken undiscussed."32
Unfortunately, given the highly politicized charge of the times, it has been peddled
that an act or vote that assists the initiative process is one for the willful extinction
of democracy or democratic institutions. Such a consideration should of course
properly play its course in the public debates and deliberations attendant to the
initiative process. Yet as a result of the harum-scarum, the temptation lies heavy for
a member of this Court perturbed with the prospect of constitutional change to
relieve those anxieties by simply voting to enjoin any legal procedure that initiates
the amendment or revision of the fundamental law, even at the expense of the
people's will or what the Constitution allows. A vote so oriented takes the
conservative path of least resistance, even as it may gain the admiration of those
who do not want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of the Constitution and
the elements of democracy on which our rule of law is founded. Direct democracy,
as embodied in the initiative process, is but a culmination of the evolution over the
centuries of democratic rights of choice and self-governance. The reemergence of
the Athenian democratic ideal after centuries of tyrannical rules arrived very slowly,
the benefits parceled out at first only to favored classes. The Magna Carta granted
limited rights to self-determination and self-governance only to a few English
nobles; the American Constitution was originally intended to give a meaningful
voice only to free men, mostly Caucasian, who met the property-holding
requirements set by the states for voting. Yet even the very idea of popular voting,
limited as it may have already been within the first few years of the American
Union, met resistance from no less a revered figure as Alexander Hamilton, to whom
the progressive historian Howard Zinn attributes these disconcerting words:
The voice of the people has been said to be the voice of God; and however
generally this maxim has been quoted and believed, it is not true in fact. The people
are turbulent and changing; they seldom judge or determine right. Give therefore to
the first class a distinct permanent share in the government Can a democratic
assembly who annually revolve in the mass of the people be supposed steadily to
pursue the public good? Nothing but a permanent body can check the imprudence
of democracy33
This utterly paternalistic and bigoted view has not survived into the present age of
modern democracy where a person's poverty, color, or gender no longer impedes
the exercise of full democratic rights. Yet a democracy that merely guarantees its
citizens the right to live their lives freely is incomplete if there is no corresponding
allowance for a means by which the people have a direct choice in determining their
country's direction. Initiative as a mode of amending a constitution may seem
incompatible with representative democracy, yet it embodies an even purer form of
democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a
progressive measure that is but a continuation of the line of evolution of the
democratic ideal.
By allowing the sovereign people to directly propose and enact constitutional

amendments, the initiative process should be acknowledged as the purest
implement of democratic rule under law. This right granted to over sixty million
Filipinos cannot be denied by the votes of less than eight magistrates for reasons
that bear no cogitation on the Constitution.
I VOTE to GRANT the petitions.
DANTE O. TINGA
Associate Justice
____________________
EN BANC
G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED
VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT,
ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION,
INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN
V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE
QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL
BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN,
LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY
SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO
AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER
AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and
PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L.
SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299

Petitioners
vs.
Respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CHICO-NAZARIO, J.:
"The people made the constitution, and the people can unmake it. It is the creature
of their will, and lives only by their will. But this supreme and irresistible power to
make or unmake, resides only in the whole body of the people; not in any
subdivision of them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.
I express my concurrence in the discussions and conclusions presented in the

persuasive and erudite dissent of Justice Reynato S. Puno. However, I make some
additional observations in connection with my concurrence.
While it is but proper to accord great respect and reverence to the Philippine
Constitution of 1987 for being the supreme law of the land, we should not lose sight
of the truth that there is an ultimate authority to which the Constitution is also
subordinate the will of the people. No less than its very first paragraph, the
Preamble,1 expressly recognizes that the Constitution came to be because it was
ordained and promulgated by the sovereign Filipino people. It is a principle
reiterated yet again in Article II, Section 1, of the Constitution, which explicitly
declares that "[t]he Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them." Thus, the
resolution of the issues and controversies raised by the instant Petition should be
guided accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign people, then, in the
event that the people change their will, so must the Constitution be revised or
amended to reflect such change. Resultantly, the right to revise or amend the
Constitution inherently resides in the sovereign people whose will it is supposed to
express and embody. The Constitution itself, under Article XVII, provides for the
means by which the revision or amendment of the Constitution may be proposed
and ratified.
Under Section 1 of the said Article, proposals to amend or revise the Constitution
may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b)
by constitutional convention. The Congress and the constitutional convention
possess the power to propose amendments to, or revisions of, the Constitution not
simply because the Constitution so provides, but because the sovereign people had

chosen to delegate their inherent right to make such proposals to their
representatives either through Congress or through a constitutional convention.
On the other hand, the sovereign people, well-inspired and greatly empowered by
the People Power Revolution of 1986, reserved to themselves the right to directly
propose amendments to the Constitution through initiative, to wit

The Congress shall provide for the implementation of the exercise of this right.2
The afore-quoted section does not confer on the Filipino people the right to amend
the Constitution because, as previously discussed, such right is inherent in them.
The section only reduces into writing this right to initiate amendments to the
Constitution where they collectively and willfully agreed in the manner by which
they shall exercise this right: (a) through the filing of a petition; (b) supported by at
least twelve percent (12%) of the total number of registered voters nationwide; (c)
with each legislative district represented by at least three percent (3%) of the
registered voters therein; (d) subject to the limitation that no such petition may be
filed within five years after the ratification of the Constitution, and not oftener than
once every five years thereafter; and (e) a delegation to Congress of the authority
to provide the formal requirements and other details for the implementation of the
right.
It is my earnest opinion that the right of the sovereign people to directly propose
amendments to the Constitution through initiative is more superior than the power
they delegated to Congress or to a constitutional convention to amend or revise the
Constitution. The initiative process gives the sovereign people the voice to express
their collective will, and when the people speak, we must be ready to listen. Article
XVII, Section 2 of the Constitution recognizes and guarantees the sovereign people's
right to initiative, rather than limits it. The enabling law which Congress has been
tasked to enact must give life to the said provision and make the exercise of the
right to initiative possible, not regulate, limit, or restrict it in any way that would
render the people's option of resorting to initiative to amend the Constitution more
stringent, difficult, and less feasible, as compared to the other constitutional means
to amend or revise the Constitution. In fact, it is worth recalling that under Article

VI, Section 1 of the Constitution, the legislative power of Congress is limited to the
extent reserved to the people by the provisions on initiative and referendum.
It is with this frame of mind that I review the issues raised in the instant Petitions,
and which has led me to the conclusions, in support of the dissent of Justice Puno,
that (a) The Commission on Election (COMELEC) had indeed committed grave abuse
of discretion in summarily dismissing the petition for initiative to amend the
Constitution filed by herein petitioners Raul L. Lambino and Erico B. Aumentado; (b)
The Court should revisit the pronouncements it made in Santiago v. Commission on
Elections;3 (c) It is the sovereign people's inherent right to propose changes to the
Constitution, regardless of whether they constitute merely amendments or a total
revision thereof; and (d) The COMELEC should take cognizance of Lambino and
Aumentado's petition for initiative and, in the exercise of its jurisdiction, determine
the factual issues raised by the oppositors before this Court.
The COMELEC had indeed committed grave abuse of discretion when it summarily
dismissed Lambino and Aumentado's petition for initiative entirely on the basis of
the Santiago case which, allegedly, permanently enjoined it from entertaining or
taking cognizance of any petition for initiative to amend the Constitution in the
absence of a sufficient law.
After a careful reading, however, of the Santiago case, I believe in earnest that the
permanent injunction actually issued by this Court against the COMELEC pertains
only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent
petitions for initiative to amend the Constitution.
The Conclusion4 in the majority opinion in the Santiago case reads
CONCLUSION

under that system.
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on



(UND-96-037).

respondents.
It is clear from the fallo, as it is reproduced above, that the Court made permanent
the Temporary Restraining Order (TRO) it issued on 18 December 1996 against the
COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin
Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative.5 It was this restraining order, more particularly the portion
thereof referring to the Delfin Petition, which was expressly made permanent by the
Court. It would seem to me that the COMELEC and all other oppositors to Lambino
and Aumentado's petition for initiative gave unwarranted significance and weight to
the first paragraph of the Conclusion in the Santiago case. The first and second
paragraphs of the Conclusion, preceding the dispositive portion, merely express the

opinion of the ponente; while the definite orders of the Court for implementation are
found in the dispositive portion.
We have previously held that
The dispositive portion or the fallo is what actually constitutes the resolution of the
court and which is the subject of execution, although the other parts of the decision
may be resorted to in order to determine the ratio decidendi for such a resolution.
Where there is conflict between the dispositive part and the opinion of the court
contained in the text of the decision, the former must prevail over the latter on the
theory that the dispositive portion is the final order while the opinion is merely a
statement ordering nothing. Hence execution must conform more particularly to
that ordained or decreed in the dispositive portion of the decision.6
Is there a conflict between the first paragraph of the Conclusion and the dispositive
portion of the Santiago case? Apparently, there is. The first paragraph of the
Conclusion states that the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to
the Constitution until the enactment of a valid law. On the other hand, the fallo only
makes permanent the TRO7 against COMELEC enjoining it from proceeding with the
Delfin Petition. While the permanent injunction contemplated in the Conclusion
encompasses all petitions for initiative on amendments to the Constitution, the fallo
is expressly limited to the Delfin Petition. To resolve the conflict, the final order of
the Court as it is stated in the dispositive portion or the fallo should be controlling.
Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative
on the basis of this Court's Resolution, dated 23 September 1997, in the case of
People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission
on Elections, et al.8 The Court therein found that the COMELEC did not commit
grave abuse of discretion in dismissing the PIRMA Petition for initiative to amend the
Constitution for it only complied with the Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA Petition on the
basis of res judicata because PIRMA participated in the proceedings of the said case,
and had knowledge of and, thus, must be bound by the judgment of the Court
therein. As explained by former Chief Justice Hilario G. Davide, Jr. in his separate
opinion to the Resolution in the PIRMA case
First, it is barred by res judicata. No one aware of the pleadings filed here and in
Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the

fact that the former is substantially identical to the latter, except for the reversal of
the roles played by the principal parties and inclusion of additional, yet not
indispensable, parties in the present petition. But plainly, the same issues and
reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,

MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization
duly organized and existing under Philippine laws with office address at Suite 403,
Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO
PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to undertake the signature
drive for a people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at
the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenorpetitioner therein. Delfin alleged in his petition that he was a founding member of
the Movement for People's Initiative, and under footnote no. 6 of the decision, it was
noted that said movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the
petition in Santiago, the PEDROSA'S did not deny that they were founding members
of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that
they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the
PEDROSAS, as well as the others joining them, from the operation of the principle of
res judicata, which needs no further elaboration.9
While the Santiago case bars the PIRMA case because of res judicata, the same
cannot be said to the Petition at bar. Res judicata is an absolute bar to a subsequent
action for the same cause; and its requisites are: (a) the former judgment or order
must be final; (b) the judgment or order must be one on the merits; (c) it must have
been rendered by a court having jurisdiction over the subject matter and parties;
and (d) there must be between the first and second actions, identity of parties, of
subject matter and of causes of action.10
Even though it is conceded that the first three requisites are present herein, the last
has not been complied with. Undoubtedly, the Santiago case and the present

Petition involve different parties, subject matter, and causes of action, and the
former should not bar the latter.
In the Santiago case, the petition for initiative to amend the Constitution was filed
by Delfin alone. His petition does not qualify as the initiatory pleading over which
the COMELEC can acquire jurisdiction, being unsupported by the required number of
registered voters, and actually imposing upon the COMELEC the task of gathering
the voters' signatures. In the case before us, the petition for initiative to amend the
Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million
registered voters who affixed their signatures on the signature sheets attached
thereto. Their petition prays that the COMELEC issue an Order
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in
after the Certification by the COMELEC of the sufficiency of the petition, to allow the
Filipino people to express their sovereign will on the proposition.
Although both cases involve the right of the people to initiate amendments to the
Constitution, the personalities concerned and the other factual circumstances
attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs
sought by the parties from the COMELEC, as well as from this Court. For these
reasons, I find that the COMELEC acted with grave abuse of discretion when it
summarily dismissed the petition for initiative filed by Lambino and Aumentado. It
behooves the COMELEC to accord due course to a petition which on its face
complies with the rudiments of the law. COMELEC was openly negligent in
summarily dismissing the Lambino and Aumentado petition. The haste by which the
instant Petition was struck down is characteristic of bad faith, which, to my mind, is
a patent and gross evasion of COMELEC's positive duty. It has so obviously copped
out of its duty and responsibility to determine the sufficiency thereof and sought
protection and justification for its craven decision in the supposed permanent
injunction issued against it by the Court in the Santiago case. The COMELEC had
seemingly expanded the scope and application of the said permanent injunction,
reading into it more than what it actually states, which is surprising, considering
that the Chairman and majority of the members of COMELEC are lawyers who
should be able to understand and appreciate, more than a lay person, the legal

consequences and intricacies of the pronouncements made by the Court in the
Santiago case and the permanent injunction issued therein.
No less than the Constitution itself, under the second paragraph of Article XVII,
Section 4, imposes upon the COMELEC the mandate to set a date for plebiscite after
a positive determination of the sufficiency of a petition for initiative on amendments
to the Constitution, viz
SEC. 4. x x x
As a rule, the word "shall" commonly denotes an imperative obligation and is

inconsistent with the idea of discretion, and that the presumption is that the word
"shall" when used, is mandatory.11 Under the above-quoted constitutional
provision, it is the mandatory or imperative obligation of the COMELEC to (a)
determine the sufficiency of the petition for initiative on amendments to the
Constitution and issue a certification on its findings; and (b) in case such petition is
found to be sufficient, to set the date for the plebiscite on the proposed
amendments not earlier than 60 days nor later than 90 days after its certification.
The COMELEC should not be allowed to shun its constitutional mandate under the
second paragraph of Article XVII, Section 4, through the summary dismissal of the
petition for initiative filed by Lambino and Aumentado, when such petition is
supported by 6.3 million signatures of registered voters. Should all of these
signatures be authentic and representative of the required percentages of
registered voters for every legislative district and the whole nation, then the
initiative is a true and legitimate expression of the will of the people to amend the
Constitution, and COMELEC had caused them grave injustice by silencing their voice
based on a patently inapplicable permanent injunction.
II
We should likewise take the opportunity to revisit the pronouncements made by the
Court in its Decision in the Santiago case, especially as regards the supposed
insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the
implementation of the people's right to initiative on amendments to the
Constitution.
The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate
actually gave rise to more questions rather than answers, due to the fact that there
has never been a judicial precedent wherein the Court invalidated a law for
insufficiency or inadequacy. The confusion over such a declaration thereby impelled
former Chief Justice Davide, Jr., the ponente in the Santiago case, to provide the
following clarification in his separate opinion to the Resolution in the PIRMA case,
thus
Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A.
No. 6735 relating to Constitutional initiatives for failure to comply with the
"completeness and sufficient standard tests" with respect to permissible delegation
of legislative power or subordinate legislation. However petitioners attempt to twist
the language in Santiago, the conclusion is inevitable; the portion of R.A. No. 6735
was held to be unconstitutional.
It is important to note, however, that while the Decision in the Santiago case
pronounced repeatedly that Republic Act No. 6735 was insufficient and inadequate,
there is no categorical declaration therein that the said statute was
unconstitutional. The express finding that Republic Act No. 6735 is unconstitutional
can only be found in the separate opinion of former Chief Justice Davide to the
Resolution in the PIRMA case, which was not concurred in by the other members of
the Court.
Even assuming arguendo that the declaration in the Santiago case, that Republic
Act No. 6735 is insufficient and inadequate, is already tantamount to a declaration
that the statute is unconstitutional, it was rendered in violation of established rules
in statutory construction, which state that
[A]ll presumptions are indulged in favor of constitutionality; one who attacks a

statute, alleging unconstitutionality must prove its invalidity beyond a reasonable
doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this
Court does not decide questions of a constitutional nature unless that question is
properly raised and presented in appropriate cases and is necessary to a
determination of the case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the issue of
constitutionality of Republic Act No. 6735 by ordering the COMELEC to dismiss the
Delfin petition for the simple reason that it does not constitute an initiatory pleading

over which the COMELEC could acquire jurisdiction. And second, the
unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was
by and large merely inferred or deduced from the way Republic Act No. 6735 was
worded and the provisions thereof arranged and organized by Congress. The
dissenting opinions rendered by several Justices in the Santiago case reveal the
other side to the argument, adopting the more liberal interpretation that would
allow the Court to sustain the constitutionality of Republic Act No. 6735. It would
seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.
The Court, acting en banc on the Petition at bar, can revisit its Decision in the
Santiago case and again open to judicial review the constitutionality of Republic Act
No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having
satisfied the completeness and sufficiency of standards tests for the valid
delegation of legislative power. I fully agree in the conclusion made by Justice Puno
on this matter in his dissenting opinion12 in the Santiago case, that reads
aforestated, Section 2 spells out the policy of the law; viz: "The power of the people
necessary to start a people's initiative, directs how initiative proceeding is
commenced, what the COMELEC should do upon filing of the petition for initiative,
how a proposition is approved, when a plebiscite may be held, when the
amendment takes effect, and what matters may not be the subject of any initiative.
By any measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse on the difference
between an "amendment" and a "revision" of the Constitution. Allow me also to
articulate my additional thoughts on the matter.
Oppositors to Lambino and Aumentado's petition for initiative argue that the
proposed changes therein to the provisions of the Constitution already amount to a
revision thereof, which is not allowed to be done through people's initiative; Article

XVII, Section 2 of the Constitution on people's initiative refers only to proposals for
amendments to the Constitution. They assert the traditional distinction between an
amendment and a revision, with amendment referring to isolated or piecemeal
change only, while revision as a revamp or rewriting of the whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is no quantitative or

qualitative test that can establish with definiteness the distinction between an
amendment and a revision, or between a substantial and simple change of the
Constitution.
The changes proposed to the Constitution by Lambino and Aumentado's petition for
initiative basically affect only Article VI on the Legislative Department and Article VII
on the Executive Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and executive powers in
a unicameral Parliament, with the President as the Head of State and the Prime
Minister exercising the executive power; they would not essentially affect the other
16 Articles of the Constitution. The 100 or so changes counted by the oppositors to
the other provisions of the Constitution are constituted mostly of the nominal
substitution of one word for the other, such as Parliament for Congress, or Prime
Minister for President. As eloquently pointed out in the dissent of Justice Puno, the
changes proposed to transform our form of government from bicameral-presidential
to unicameral-parliamentary, would not affect the fundamental nature of our state
as a democratic and republican state. It will still be a representative government
where officials continue to be accountable to the people and the people maintain
control over the government through the election of members of the Parliament.
Furthermore, should the people themselves wish to change a substantial portion or

even the whole of the Constitution, what or who is to stop them? Article XVII,
Section 2 of the Constitution which, by the way it is worded, refers only to their right
to initiative on amendments of the Constitution? The delegates to the Constitutional
Convention who, according to their deliberations, purposely limited Article XVII,
Section 2 of the Constitution to amendments? This Court which has the jurisdiction
to interpret the provision? Bearing in mind my earlier declaration that the will of the
sovereign people is supreme, there is nothing or no one that can preclude them
from initiating changes to the Constitution if they choose to do so. To reiterate, the
Constitution is supposed to be the expression and embodiment of the people's will,
and should the people's will clamor for a revision of the Constitution, it is their will
which should prevail. Even the fact that the people ratified the 1987 Constitution,
including Article XVII, Section 2 thereof, as it is worded, should not prevent the
exercise by the sovereign people of their inherent right to change the Constitution,
even if such change would be tantamount to a substantial amendment or revision
thereof, for their actual exercise of the said right should be a clear renunciation of

the limitation which the said provision imposes upon it. It is the inherent right of the
people as sovereign to change the Constitution, regardless of the extent thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and
take cognizance of Lambino and Aumentado's petition for initiative to amend the
Constitution. I reiterate that it would be a greater evil if one such petition which is
ostensibly supported by the required number of registered voters all over the
country, be summarily dismissed.
Giving due course and taking cognizance of the petition would not necessarily mean
that the same would be found sufficient and set for plebiscite. The COMELEC still
faces the task of reviewing the petition to determine whether it complies with the
requirements for a valid exercise of the right to initiative. Questions raised by the
oppositors to the petition, such as those on the authenticity of the registered voters'
signatures or compliance with the requisite number of registered voters for every
legislative district, are already factual in nature and require the reception and
evaluation of evidence of the parties. Such questions are best presented and
resolved before the COMELEC since this Court is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the COMELEC
dated 31 August 2006 denying due course to the Petition for Initiative filed by
Lambino and Aumentado be reversed and set aside for having been issued in grave
abuse of discretion, amounting to lack of jurisdiction, and that the Petition be
remanded to the COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.
MINITA V. CHICO-NAZARIO
Associate Justice
____________________
EN BANC

G.R. No. 174153
October 25, 2006

VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299
October 25, 2006

petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S.
ABALOS, JR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A.
TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter
Doe, respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
VELASCO, JR., J.:
Introduction
The fate of every democracy, of every government based on the Sovereignty of the
people, depends on the choices it makes between these opposite principles:
absolute power on the one hand, and on the other the restraints of legality and the
authority of tradition.
John Acton
In this thorny matter of the people's initiative, I concur with the erudite and highly
persuasive opinion of Justice Reynato S. Puno upholding the people's initiative and
raise some points of my own.
The issue of the people's power to propose amendments to the Constitution was
once discussed in the landmark case of Santiago v. COMELEC.1 Almost a decade

later, the issue is once again before the Court, and I firmly believe it is time to
reevaluate the pronouncements made in that case.
The issue of Charter Change is one that has sharply divided the nation, and its
proponents and opponents will understandably take all measures to advance their
position and defeat that of their opponents. The wisdom or folly of Charter Change
does not concern the Court. The only thing that the Court must review is the validity
of the present step taken by the proponents of Charter Change, which is the
People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:
Amendments to this Constitution may likewise be directly proposed by the people

least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this
In the Santiago case, the Court discussed whether the second paragraph of that
section had been fulfilled. It determined that Congress had not provided for the
implementation of the exercise of the people's initiative, when it held that Republic
Act No. 6735, or "The Initiative and Referendum Act," was "inadequate to cover the
system of initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation."2
With all due respect to those Justices who made that declaration, I must disagree.
Republic Act No. 6735 is the proper law for proposing constitutional amendments
and it should not have been considered inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws in the

drafting of the law, in the failings of the way the law was structured, to come to the
conclusion that the law was inadequate. The Court itself recognized the legislators'
intent, but disregarded this intent. The law was found wanting. The Court then saw
the inclusion of the Constitution in RA 6735 as an afterthought. However, it was
included, and it should not be excluded by the Court via a strained analysis of the
law. The difficult construction of the law should not serve to frustrate the intent of

the framers of the 1987 Constitution: to give the people the power to propose
amendments as they saw fit. It is a basic precept in statutory construction that the
intent of the legislature is the controlling factor in the interpretation of a statute.3
The intent of the legislature was clear, and yet RA 6735 was declared inadequate. It
was not specifically struck down or declared unconstitutional, merely incomplete.
The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been more
flexible. It is also a basic precept of statutory construction that statutes should be
construed not so much according to the letter that killeth but in line with the
purpose for which they have been enacted.4 The reading of the law should not have
been with the view of its defeat, but with the goal of upholding it, especially with its
avowed noble purpose.
Congress has done its part in empowering the people themselves to propose
amendments to the Constitution, in accordance with the Constitution itself. It should
not be the Supreme Court that stifles the people, and lets their cries for change go
unheard, especially when the Constitution itself grants them that power.
The court's ruling in the Santiago case does not bar the present petition because
the fallo in the Santiago case is limited to the Delfin petition.
The Santiago case involved a petition for prohibition filed by Miriam DefensorSantiago, et al., against the COMELEC, et al., which sought to prevent the COMELEC
from entertaining the "Petition to Amend the Constitution, to Lift Term Limits of
Elective Officials, by People's Initiative" filed by Atty. Jesus Delfin. In the body of the
judgment, the Court made the following conclusion, viz:
This petition must then be granted and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition or initiative on
amendments on the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system (emphasis supplied).

under that system.

In the said case, the Court's fallo states as follows:
b) DECLARING R. A. 6735 inadequate to cover the system of initiative on

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on


(UND-96-037).

as against the Commission on Elections, but is LIFTED against private respondents.
SO ORDERED.
The question now is if the ruling in Santiago is decisive in this case. It is elementary
that when there is conflict between the dispositive portion or fallo of the decision
and the opinion of the court contained in the text or body of the judgment, the
former prevails over the latter. An order of execution is based on the disposition, not
on the body, of the decision.5 The dispositive portion is its decisive resolution; thus,
it is the subject of execution. The other parts of the decision may be resorted to in
order to determine the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court contained in the text or
body of the decision, the former must prevail over the latter on the theory that the
dispositive portion is the final order, while the opinion is merely a statement
ordering nothing. Hence, the execution must conform with that which is ordained or
decreed in the dispositive portion of the decision.6
A judgment must be distinguished from an opinion. The latter is an informal

expression of the views of the court and cannot prevail against its final order or
decision. While the two may be combined in one instrument, the opinion forms no
part of the judgment. So there is a distinction between the findings and conclusions
of a court and its Judgment. While they may constitute its decision and amount to
the rendition of a judgment, they are not the judgment itself. It is not infrequent that
the grounds of a decision fail to reflect the exact views of the court, especially those
of concurring justices in a collegiate court. We often encounter in judicial decisions
lapses, findings, loose statements and generalities which do not bear on the issues
or are apparently opposed to the otherwise sound and considered result reached by
the court as expressed in the dispositive part, so called, of the decision.7
Applying the foregoing argument to the Santiago case, it immediately becomes

apparent that the disposition in the latter case categorically made permanent the
December 18, 1996 Temporary Restraining Order issued against the COMELEC in
the Delfin petition but did NOT formally incorporate therein any directive
PERMANENTLY enjoining the COMELEC "from entertaining or taking cognizance of
any petition for initiative on amendments." Undeniably, the perpetual proscription
against the COMELEC from assuming jurisdiction over any other petition on Charter
Change through a People's Initiative is just a conclusion and cannot bind the poll
body, for such unending ban would trench on its constitutional power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall under Section 2, Article IX of the Constitution. RA
6735 gave the COMELEC the jurisdiction to determine the sufficiency of the petition
on the initiative under Section 8, Rule 11 and the form of the petition under Section
3, Rule I; hence, it cannot be barred from entertaining any such petition.
In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition
on initiative under RA 6735 and it can rule on the petition and its action can only be
passed upon by the Court when the same is elevated through a petition for
certiorari. COMELEC cannot be barred from acting on said petitions since jurisdiction
is conferred by law (RA 6735) and said law has not been declared unconstitutional
and hence still valid though considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent case of PIRMA v.
Commission on Elections8 confirmed the statement of the Court in the Santiago
case that the COMELEC was "permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments." Much reliance is placed on
the ruling contained in a Minute Resolution which reads:

The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could
be attributed to the public respondent COMELEC in Dismissing the petition filed by
PIRMA therein, it appearing that it only Complied with the DISPOSITIONS in the
Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Take note that the Court specifically referred to "dispositions" in the March 19, 1997
Decision. To reiterate, the dispositions in the Santiago case decision refer
specifically to the December 18, 1996 TRO being made permanent against the
COMELEC but do not pertain to a permanent injunction against any other petition
for initiative on amendment. Thus, what was confirmed or even affirmed in the
Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO
which became permanent, the declaration of the inadequacy of RA 6735, and the
annulment of certain parts of Resolution No. 2300 but certainly not the alleged
perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA
case cannot be considered res judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be allowed under RA
6735, since only amendments to the Constitution may be the subject of a people's
initiative.
The Lambino petition cannot be considered an act of revising the Constitution; it is

merely an attempt to amend it. The term amendment has to be liberally construed
so as to effectuate the people's efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:

provisions. But whatever results the revision may produce, the factor that
one.

intention rather is to improve specific parts of the existing constitution or to add to
it provisions deemed essential on account of changed conditions or to suppress
portions of it that seem obsolete, or dangerous, or misleading in their effect.
In this case, the Lambino petition is not concerned with rewriting the entire
Constitution. It was never its intention to revise the whole Constitution. It merely
concerns itself with amending a few provisions in our fundamental charter.
When there are gray areas in legislation, especially in matters that pertain to the
sovereign people's political rights, courts must lean more towards a more liberal
interpretation favoring the people's right to exercise their sovereign power.
Conclusion
Sovereignty residing in the people is the highest form of sovereignty and thus
deserves the highest respect even from the courts. It is not something that can be
overruled, set aside, ignored or stomped over by whatever amount of technicalities,
blurred or vague provisions of the law.
As I find RA 6735 to be adequate as the implementing law for the People's Initiative,
I vote to grant the petition in G.R. No. 174153 and dismiss the petition in G.R. No.
174299. The Amended Petition for Initiative filed by petitioners Raul L. Lambino and
Erico B. Aumentado should be remanded to the COMELEC for determination whether
or not the petition is sufficient under RA 6735, and if the petition is sufficient, to
schedule and hold the necessary plebiscite as required by RA 6735.
It is time to let the people's voice be heard once again as it was twenty years ago.
And should this voice demand a change in the Constitution, the Supreme Court
should not be one to stand in its way.
PRESBITERO J. VELASCO, JR.

Associate Justice
Footnotes
1 Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
2 This provision states: "Requirements. x x x x
(b) 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

c.3. the reason or reasons therefor;
c.6. an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition."
3 This provision states: "Verification of Signatures. The Election Registrar shall

verify the signatures on the basis of the registry list of voters, voters' affidavits and
voters identification cards used in the immediately preceding election."
4 Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

5 Sections 1, 2, 3, and 4 of Article VII will be changed thus:
of government.
6 Sections 1-5 of the Transitory Provisions read:

shall be deleted, all other sections of Article VI are hereby retained and renumbered
that any and all references therein to "Congress", "Senate", "House of
that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the "President" and or
"Acting President" shall be changed to read "Prime Minister".
as to conform to a unicameral Parliamentary System of government; provided
however that any and all references therein to "Congress", "Senate", "House of
that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the "President" and or
"Acting President" shall be changed to read "Prime Minister".


strong bureaucracy.
responsibilities as may be delegated to him by the incumbent President.
of all local government officials. Thereafter, the Vice President, as Member of
Parliament, shall immediately convene the Parliament and shall initially preside over
its session for the purpose of electing the Prime Minister, who shall be elected by a
majority vote of all
its members, from among themselves. The duly elected Prime Minister shall
continue to exercise and perform the powers, duties and responsibilities of the
interim Prime Minister until the expiration of the term of incumbent President and
Vice President.
7 As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and

a modified paragraph 2, Section 5, thus:
Section 4. x x x x
xxxx
Section 5. x x x x

of all local government officials. The duly elected Prime Minister shall continue to
President.
8 336 Phil. 848 (1997); Resolution dated 10 June 1997.
9 The COMELEC held:
We agree with the Petitioners that this Commission has the solemn Constitutional
duty to enforce and administer all laws and regulations relative to the conduct of, as
in this case, initiative.
This mandate, however, should be read in relation to the other provisions of the
Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:

by at least three per centum of the registered voters therein. x x x.
The afore-quoted provision of the Constitution being a non self-executory provision

needed an enabling law for its implementation. Thus, in order to breathe life into
the constitutional right of the people under a system of initiative to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or
resolution, Congress enacted Republic Act No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in

Constitution is concerned.
The Supreme Court likewise declared that this Commission should be permanently
Thus, even if the signatures in the instant Petition appear to meet the required
minimum per centum of the total number of registered voters, of which every
legislative district is represented by at least three per centum of the registered
voters therein, still the Petition cannot be given due course since the Supreme Court
categorically declared R.A. No. 6735 as inadequate to cover the system of initiative
on amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the right of

the people under a system of initiative. However, neither can we turn a blind eye to
the pronouncement of the High Court that in the absence of a valid enabling law,
this right of the people remains nothing but an "empty right", and that this
Commission is permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution.
Considering the foregoing, We are therefore constrained not to entertain or give due
course to the instant Petition.
10 Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya;

Philippine Transport and General Workers Organization (PTGWO); Trade Union
Congress of the Philippines; Sulong Bayan Movement Foundation, Inc.
11 Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III,

Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law
Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno,
Head, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr.
Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa
Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association
(PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M.
Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate
of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador and Randall C. Tabayoyong, Integrated Bar of the Philippines,

Cebu City and Cebu Province Chapters; Senate Minority Leader Aquilino Q. Pimentel,
Jr., and Senators Sergio R. Osmea III, Jamby Madrigal, Jinggoy Estrada, Alfredo S.
Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.
12 This provision states: "Amendments to this Constitution may likewise be directly

proposed by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years."
13 I RECORD, 387-388.
14 During the deliberations of the Constitutional Commission, Commissioner Rene V.

Sarmiento made the following report (I RECORD 389):
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments

and Transitory Provisions decided to retain the system of initiative as a mode of
amending the Constitution. I made a survey of American constitutions and I
discovered that 13 States provide for a system of initiative as a mode of amending
the Constitution Arizona, Arkansas, California, Colorado, Massachusetts,
Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon.
The initiative for ordinary laws only is used in Idaho, Maine, Montana and South
Dakota. So, I am happy that this was accepted or retained by the Committee.
xxxx
The Americans in turn copied the concept of initiatives from the Swiss beginning in
1898 when South Dakota adopted the initiative in its constitution. The Swiss
cantons experimented with initiatives in the 1830s. In 1891, the Swiss incorporated
the initiative as a mode of amending their national constitution. Initiatives promote
"direct democracy" by allowing the people to directly propose amendments to the
constitution. In contrast, the traditional mode of changing the constitution is known
as "indirect democracy" because the amendments are referred to the voters by the
legislature or the constitutional convention.
15 Florida requires only that the title and summary of the proposed amendment are
"printed in clear and unambiguous language." Advisory Opinion to the Attorney

General RE Right of Citizens to Choose Health Care Providers, No. 90160, 22 January
1998, Supreme Court of Florida.
16 State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v.
Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99
Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d
951 (1958); Stop the Pay Hike Committee v. Town Council of Town of Irvington, 166
N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell, Slip copy,
2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
17 407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in
Henry v. Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit,
in Henry v. Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of
Southbridge, 13 Mass.L.Rptr. 14 (2001).
18 89 P.3d 1227, 1235 (2004).
19 Stumpf v. Law, 839 P. 2d 120, 124 (1992).
20 Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.
21 Annex "B" of the Comment/Opposition in Intervention of Atty. Pete QuirinoQuadra filed on 7 September 2006.
22 www.ulap.gov.ph.
23 www.ulap.gov.ph/reso2006-02.html.
24 The full text of the proposals of the Consultative Commission on Charter Change
can be downloaded at its official website at www.concom.ph.
25 The Lambino Group's Memorandum, p. 5.

26 Under the proposed Section 1(2), Article VI of the Constitution, members of
Parliament shall be elected for a term of five years "without limitation as to the
number thereof."
27 Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the
Constitution, the interim Parliament "shall continue until the Members of the regular
Parliament shall have been elected and shall have qualified." Also, under the
proposed Section 5(2), Article XVIII, of the same Transitory Provisions, the interim
Parliament "shall provide for the election of the members of Parliament."
28 Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the
Constitution, the interim Parliament, within 45 days from ratification of the proposed
changes, "shall convene to propose amendments to, or revisions of, this
Constitution."
29 448 So.2d 984, 994 (1984), internal citations omitted.
30 698 P.2d 1173, 1184 (1985).
31 I RECORD 386, 392, 402-403.
32 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91
(1994).
33 392 P.2d 636, 638 (1964).
34 930 P.2d 186, 196 (1996), internal citations omitted.
35 Livermore v. Waite, 102 Cal. 113, 118-119 (1894).
36 Amador Valley Joint Union High School District v. State Board of Equalization, 583
P.2d 1281, 1286 (1978).
37 Id.
38 Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).
39 California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836

(2003).
40 See note 44, infra.
41 Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A

Commentary, p. 1294 (2003).
42 238 So.2d 824 (1970).
43 Id. at 830-832.
44 As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September

2006 oral arguments.
45 Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003,

415 SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393
(1970); Gold Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
46 882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the
amendment in question was not a revision.
47 Section 1, Article V of the Constitution.
48 Section 11(1), Article XVI of the Constitution.
49 Section 2, Article VII of the Constitution.

50 This section provides: "The Philippines is a democratic and republican State.
them."
51 Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366
Phil. 273 (1999).
52 G.R. No. 129754, Resolution dated 23 September 1997.
53 Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming

the Ratification of the Constitution of the Republic of the Philippines Adopted by the
Constitutional Commission of 1986, including the Ordinance Appended thereto."
PANGANIBAN, CJ.:
1 Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her
speech before the Global Forum on Liberty and Prosperity held on October 18-20,
2006 in Manila. She further stated: "Without the rule of law, government officials are
not bound by standards of conduct. Without the rule of law, the dignity and equality
of all people is not affirmed and their ability to seek redress for grievances and
societal commitments is limited. Without the rule of law, we have no means of
ensuring meaningful participation by people in formulating and enacting the norms
and standards which organize the kinds of societies in which we want to live."
2 GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate
Opinion is reproduced in full:
"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. 2300, '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
"Under the above restrictive holdings espoused by the Court's majority, the
not by PIRMA, not by anyone, not even by all the voters of the country acting
"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
exercising their right to free speech in proposing amendments to the Constitution."
3 GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or
in the Supreme Court Reports Annotated). Again, for ease of reference, I reproduce
my Separate Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing

their petition for a people's initiative to amend the Constitution. Said petition before
the Comelec (henceforth, PIRMA petition) was backed up by nearly six (6) million
signatures constituting about 16% of the registered voters of the country with at
least 3% in each legislative district. The petition now before us presents two
grounds:
"1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave
abuse of discretion amounting to lack or excess of jurisdiction; and
"2. In declaring R.A. 6735 "inadequate to cover its system of initiative on

amendments to the Constitution" and "declaring void those parts of Resolution 2300
of the Commission on Elections prescribing rules and regulations on the conduct of
[an] initiative [on] amendments to the Constitution," the Supreme Court's Decision
in G.R. No. 127325 entitled Miriam Defensor Santiago vs. Commission on Elections
(hereafter referred to as Santiago) should be reexamined because said Decision is
allegedly "unconstitutional," and because, in any event, the Supreme Court itself, in
reconsidering the said issue per its June 10, 1997 Resolution, was deadlocked at six
votes one each side.
"The following in my position on each of these two issues:
First Issue:
No Grave Abuse of Discretion in Comelec's Refusal to Act
"The Respondent Commission's refusal to act on the "prayers" of the PIRMA petition
cannot in any wise be branded as "grave abuse of discretion." Be it remembered
that the Court's Decision in Santiago permanently enjoined the Comelec "from
entertaining or taking cognizance of any petition for initiative on amendments to
the
4 Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
5 Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v.

Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359

Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41,
March 10, 1994.
6 In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely
erred in rendering such a sweeping injunction [that covered ANY petition, not just
the Delfin petition], but I cannot fault the Comelec for complying with the ruling
even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec
was directly enjoined by the highest Court of the land. It had no choice but to obey.
Its obedience cannot constitute grave abuse of discretion. Regusal to act on the
PIRMA petition was the only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and would have been struck
down as grave abuse of discretion and contumacious disregard of this Court's
supremacy as the final arbiter of justiciable controversies."
7 42 Am. Jr. 2d, 26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d
475, 250 Ala 137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458; Hoxie V.
Scott, 45 Neb 199, 63 NW 387; Gill v. Board of Comrs., 160 NC 176, 76, SE 204.
8 Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.
9 Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon the vote of three-fourths of all its Members; or
"SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

people though initiative upon a petition of at least twelve per centum of the total

"SEC. 3. The Congress 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 to the
electorate the question of calling such a convention.
"SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after the approval of
such amendment or revision.
"Any amendment under Section 2 hereof shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not earlier than sixty days nor
later than ninety days after the certification by the Commission on Elections of the
sufficiency of the petition."
10 Republic Act 6735, Sec. 10, provides:
"SEC. 10. Prohibited Measures. The following cannot be the subject of an initiative
or referendum petition:
(a) No petition embracing more than one subject shall be submitted to the
electorate; and
(b) Statutes involving emergency measures, the enactment of which are specifically
vested in Congress by the Constitution, cannot be subject to referendum until ninety
(90) days after its effectivity."
11 The principle of separation of powers operates at the core of a presidential form

of government. Thus, legislative power is given to the legislature; executive power,
to a separate executive (from whose prominent position in the system, the
presidential nomenclature is derived); and judicial power, to an independent
judiciary. This system embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence by

integration, its essential features being the following: "(1) The members of the
government or cabinet or the executive arm are, as a rule, simultaneously members
of the legislature. (2) The government or cabinet, consisting of the political leaders
of the majority party or of a coalition who are also members of the legislative, is in

effect a committee of the legislature. (3) The government or cabinet has a
pyramidal structure, at the apex of which is the Prime Minister or his equivalent. (4)
The government or cabinet remains in power only for as long as it enjoys the
support of the majority of the legislature. (5) Both government and legislature are
possessed of control devices with which each can demand of the other immediate
political responsibility." These control devices are a vote of no-confidence (censure),
whereby the government may be ousted by the legislature; and the power of the
government to dissolve the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, Vol. II, 17-18
(1988 ed.).
With respect to the transformation from a bicameral to a unicameral legislature, the

change involves the form of representation and the lawmaking process.
12 Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc., etc., is a

photocopy of the Certification dated August 23, 2006, issued by Atty. Marlon S.
Casquejo, the election officer for the 3rd District and the officer-in-charge for the 1st
and the 2nd Districts of Davao City. The Certification states that "this office (First,
Second and Third District, Davao City) has not verified the signatures of registered
voters x x x."
13 In People v. Veneracion, the Court held: "Obedience to the rule of law forms the
bedrock of our system of justice. If judges, under the guide 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, judges
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." (249 SCRA 244, October 13, 1995, per
Kapunan, J.)
14 An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying

the constitution that included an explicit amendment process, the sovereign people
committed themselves to following the rule of law, even when they wished to make
changes in the basic system of government." A. ALTMAN, ARGUING ABOUT LAW 94
(2001).
15 See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA

45, November 10, 2003.
16 See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of
Supreme Court" (October 23, 2006).
17 Lk 8:17.
YNARES-SANTIAGO, J.:
1 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
2 SEC. 5. Requirements. x x x

c.3. the reason or reasons therefore;
c.6. an abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
3 SEC. 3. Definition of Terms. For purposes of this Act, the following terms shall
mean: x x x

(d) "Proposition" is the measure proposed by the voters.
4 I Record, Constitutional Commission 387-389 (July 9, 1986).
5 Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK
118 (1965).
6 Section 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.
7 The late Senator (then Congressman) Raul S. Roco stated this fact in his
sponsorship presentation of H.B. No. 21505, thus:
xxxx
D. Prohibited Subjects.
The bill provides for two kinds of measures which cannot be the subject of an
initiative or referendum petition. A petition that embraces more than one subject
cannot be submitted to the electorate as it would be violative of the constitutional
proscription on passing bills containing more than one subject, and statutes
involving emergency measures cannot be subject to referendum until 90 days after
its effectivity. [Journal and record of the house of representatives, Second Regular
Session, Vol. 6, p. 975 (February 14, 1989).]
8 Memorandum of petitioner Aumentado, p. 117.
9 The proposed Section 4(3) of Article XVIII of the Constitution states that Senators
whose term of office ends in 2010 shall be members of parliament until noon of the
thirtieth day of June 2010. No counterpart provision was provided for members of
the House of Representatives who, as members of the interim parliament under the
proposed changes, shall schedule the elections for the regular parliament in its
discretion.

10 The proposed Section 4(3), Article XVIII of the Constitution states that the interim
parliament shall convene to propose amendments to, or revisions of, the
Constitution within 45 days from ratification of the proposed changes.
11 The United Kingdom, for instance, has a two-house parliament, the House of
Lords and the House of Commons.
12 Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in
Separate Opinion of J. Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. No. 129754,
September 23, 1997, p. 7.
13 151-A Phil. 35 (1973).
14 196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).
15 801 P. 2d 1077 (Cal. 1990).
16 583 P. 2d 1281 (Cal. 1982).
17 Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal.

1982).
18 Supra note 13. It may well be pointed out that in making the distinction between
amendment and revision, Justice Antonio relied not only in the analogy presented in
Wheeler v. Board of Trustees, 37 S.E. 2d 322, but cited also the seminal ruling of the
California Supreme Court in McFadden v. Jordan, supra.
19 Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan
Transportation Co. v. PSC, 40 O.G., 8th Supp. 57.
20 The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G.
Bernas, S.J., p. 1161.
21 Id.
22 Supra note 14.
23 The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr. Joaquin G.
Bernas, S.J., p. 567, citing B. Schwartz, I The Powers of Government (1963).
24 16 C.J.S. 3 at 24.
25 14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.
26 A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin
Bernas, S.J., p. A15.
27 Article II, Section 1 of the 1987 Constitution.
SANDOVAL-GUTIERREZ, J.:
1 Works, Letter 164.
2 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
3 Resolution dated June 10, 1997, G.R. No. 127325.
4 G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its
founding members, spouses Alberto Pedrosa and Carmen Pedrosa.
5 Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through
a People's Initiative: A Shift from a Bicameral Presidential to a Unicameral
Parliamentary Government by Amending Articles VI and VII; and Providing Transitory
Provisions for the Orderly Shift from the Presidential to the Parliamentary System."

6 Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L.
Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.,
Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., and
Senators Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson,
Luisa P. Ejercito-Estrada, and Jinggoy Estrada, Representatives Loretta Ann P.
Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel, Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby
Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I.
Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C.
Tabayoyong.
7 "Grounds for contempt
3. From the time the so-called People's Initiative (hereafter PI) now subject of
Lambino v. Comelec, was initiated, respondents did nothing to stop what was clearly
lawless, and even arguably winked at, as it were, if not condoned and allowed, the
waste and misuse of its personnel, time, facilities and resources on an enterprise
that had no legal basis and in fact was permanently enjoined by this Honorable
Court in 1997. Seemingly mesmerized, it is time to disenthrall them.
3.1. For instance, undersigned counsel happened to be in the Senate on August 29,
2006 (on other business) when respondent Chair sought to be stopped by the body
from commenting on PI out of prudential considerations, could not be restrained. On
contentious issues, he volunteered that Sigaw ng Bayan would not cheat in Makati
as it was the opposition territory and that the fact that out of 43,405 signatures,
only 7,186 were found authentic in one Makati District, to him, showed the
"efficiency" of Comelec personnel. He could not appreciate 1) that Sigaw had no
choice but to get the constitutionality-required 3% in every district, [Const., Art. VII,
Sec. 2] friendly or otherwise, including administration critics' turfs, and 2) that
falsus in 36,319 (93.30%) falsus in omnibus, in an exercise that could never be free,
orderly, honest and credible, another constitutional requirement. [Nothing has been
heard about probing and prosecuting the falsifiers.]
xxxxxxxxx
3.2. It was excessively obvious to undersigned and other observers that respondent
Chairman, straining at the leash, was lawyering for Sigaw ng Bayan in the Senate! It
was discomfiting that he would gloss over the seeming wholesale falsification of
96.30% of the signatures in an exercise with no credibility! Even had he been asked,
he should have pled to be excused from answering as the matter could come up

before the Comelec for an official collegial position (different from conceding that it
is enjoined).
xxxxxxxxx
4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even
issued widely-publicized written directives to the field, [Annex C, as to
Commissioner Brawner; that as to Commissioner Borra will follow.] while the
Commission itself was trying to be careful not to be explicit in what it was abetting
implicitly, in hypocritical defiance of the injunction of 1997.
8 Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No.

72424, February 13, 1989, 170 SCRA 246.
9 Supra.
10 Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59;
Albert v. Court of First Instance of Manila (Branch VI), L-26364, May 29, 1968, 23
SCRA 948.
11 56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id.
12 Supra.
13 Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23,
1997.
14 G.R. No. 109645, March 4, 1996, 254 SCRA 234.
15 Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA
307, citing Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing Santiago v.
Valenzuela, 78 Phil. 397, [1947]).

16 Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305
SCRA 303, citing Government v. Jalandoni, No. 837-R, August 30, 1947, 44 O.G.
1840.
17 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London:
Yale University Press, 1921), pp. 33-34.
18 William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,)
1973, p. 49.
19 Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.
20 July 9, 1986. Records of the Constitutional Commission, No. 26.
21 Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996

Ed., p. 1161.
22 242 N. W. 891 259 Mich 212.
23 State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.
18 City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.
25 Adams v. Gunter Fla, 238 So. 2d 824.
26 196 P.2d 787.
27 Adams v. Gunter Fla. 238 So.2d 824.
28 Mc Fadden v. Jordan, supra.

29 Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).
30 Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily

Inquirer, September 25, 2006.
31 See Sections 8-12 for national initiative and referendum, and sections 13-19 for
local initiative and referendum.
32 Section 2. Statement of Policy. The power of the people under a system of

recognized and guaranteed.
33 Section 3. Definition of terms.-
xxx
a.1. Initiative on the Constitution which refers to a petition proposing amendments

to the Constitution;
xxx
34 See Section 3(e).
35 Section 5 (b) 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.
xxx

36 Section 9 (b) The proposition in an initiative on the Constitution approved by a
the plebiscite.
37 7 How (48 US) 1 (1849).
38 328 US 549 (1946).
39 77 Phil. 192 (1946).
40 103 Phi. 1051 (1957).
41 G.R. No. 35546, September 17, 1974, 50 SCRA 559.
42 369 US 186 (1962).
43 G.R. No. 85344, December 21, 1989, 180 SCRA 496.
44 G.R. No. 88211, September 15, 1989, 177 SCRA 668.
45 Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50
SCRA 30.
CALLEJO, SR., J.:
1 Entitled An Act Providing for a System of Initiative and Referendum and

Appropriating Funds Therefor.
2 Section 2(1), Article IX-C, 1987 Constitution.
3 Petition, pp. 12-14.
4 Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25,
2003, 409 SCRA 455, 480.
5 Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, 2004, 431
SCRA 469, 480.
6 People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.
7 Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L35630, November 25, 1982, 118 SCRA 664.
8 People v. Court of Appeals, supra.
9 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
10 Article 8, New Civil Code provides that "[j]udicial decisions applying or

interpreting the laws or the Constitution shall form part of the legal system of the
Philippines."
11 Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA 284.
12 Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.
13 974 S.W.2d 451 (1998).
14 Id. at 453.
15 Entitled In Re: Rules and Regulations Governing the Conduct of Initiative in the
Constitution, and Initiative and Referendum on National and Local Laws.
16 Supra note 10, p. 157.
17 G.R. No. 129754.
18 Minute Resolution, September 23, 1997, pp. 1-2.
19 Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.
20 Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA
948.
21 Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19,

1994, 235 SCRA 506.
22 Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado, Flerida Ruth
P. Romero, Josue N. Bellosillo, Santiago M. Kapunan and Justo P. Torres, Jr. fully
concurred in the ponencia of Justice Davide.
23 Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo J.

Francisco, Jr. and Artemio V. Panganiban (now Chief Justice).
24 The voting on the motion for reconsideration was as follows: Six Justices, namely,
Chief Justice Narvasa, and Justices Regalado, Davide, Jr., Romero, Bellosillo and
Kapunan, voted to deny the motions for lack of merit; and six Justices, namely,
Justices Melo, Puno, Mendoza, Francisco, Jr., Regino C. Hermosisima and Panganiban
voted to grant the same. Justice Vitug maintained his opinion that the matter was
not ripe for judicial adjudication. Justices Teodoro R. Padilla and Torres inhibited from
participation in the deliberations.
25 House Bill No. 457 filed by then Rep. Nachura during the Twelfth Congress.
26 See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002,
389 SCRA 480.

27 London Street Tramways Co., Ltd. v. London County Council, [1898] A.C. 375,
cited in COOLEY, A Treatise on the Constitutional Limitations 117-118.
28 Amended Petition for Initiative, pp. 4-7.
29 Id. at 7.
30 I Records of the Constitutional Commission 373.
31 Id. at 371.
32 Id. at 386.
33 Id. at 392.
34 Id. at 402-403.
35 No. L-36142, March 31, 1973, 50 SCRA 30.
36 Id. at 367.
37 SINCO, Philippine Political Law 43-44.
38 37 S.E.2d 322 (1946).
39 Id. at 330.
40 Id.
41 Sounding Board, Philippine Daily Inquirer, April 3, 2006.
42 Introduction to the Journal of the Constitutional Commission.
43 BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.
44 SCHWARTZ, CONSTITUTIONAL LAW 1.
45 Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.
46 See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).
47 Id.
48 196 P.2d 787 (1948).
49 Id. at 798.
50 Ellingham v. Dye, 99 N.E. 1 (1912).
51 Dissenting Opinion of Justice Puno, p. 36.
52 Id. at 39.
53 Supra note 38.
54 McFadden v. Jordan, supra note 48.
55 Id. at 799.
56 Supra note 41.
57 Annex "1363."
58 Annex "1368."
59 Annex "1369."
60 Annex "1370."
61 Annex "1371."
62 Annex "1372."
63 Annex "1374."
64 Annex "1375."
65 Annex "1376."
66 Annex "1377."
67 Annex "1378."
68 Annex "1379."
69 Annex "1380."
70 Annex "1381."
71 Annex "1382."
72 Annex "1383."
73 Annex "1385."
74 Annex "1387."
75 Annex "1388."
76 Annex "1389."
77 Annex "1391."
78 Annex "1392."
79 Annex "1393."
80 Annex "1395."
81 Annex "1396."
82 Annex "1397."
83 Annex "1398."
84 Annex "1399."
85 Annex "1400."
86 Annex "1401."
87 Annex "1402."
88 Annex "1404."
89 Annex "1405."
90 Annex "1406."
91 Annex "1407."
92 Annex "1408."
93 Annex "1409."
94 Annex "1410."
95 Annex "1411."
96 Annex "1412."
97 Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.
98 See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158
SCRA 508.
99 Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.
100 Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639.

101 Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.
102 Taada v. Cuenco, 103 Phil. 1051 (1957).
103 Id.
104 G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.
105 Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra

note 36.
106 119 N.W. 408 (1909).
107 22 Minn. 400 (1876).
108 96 S.W. 396 (1906).
109 63 N.J. Law 289.
110 77 Miss. 543 (1900).
111 Section 1, Article II, 1987 Constitution.
112 Dissenting Opinion of Justice Puno, p. 49.
113 COOLEY, A Treatise on the Constitutional Limitations 56, cited in Ellingham v.

Dye, supra.
114 Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).

115 ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE SUPREME
COURT AND CONSTITUTIONAL DEMOCRACY (1984)
116 McBee v. Brady, 100 P. 97 (1909).
117 McFadden v. Jordan, supra note 48.
118 Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.
119 15 N.W. 609 (1883).
120 Id. at 630.
AZCUNA, J.:
1 G.R. No. 127325, March 19, 1997 and June 10, 1997.
2 100 Phil. 501 (1956).
PUNO, J.:
1 M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).
2 Section 1, Article II, 1987 Constitution.
3 270 SCRA 106, March 19, 1997.
4 Id. at 153.
5 Id. at 157.
6 Justice Teodoro R. Padilla did not take part in the deliberation as he was related to
a co-petitioner and co-counsel of petitioners.
7 Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado, Romero,
Bellosillo, and Kapunan.
8 Resolution dated June 10, 1997, G.R. No. 127325.
9 People's Initiative for Reforms, Modernization and Action (PIRMA) v. Commission

on Elections, G.R. No. 129754, September 23, 1997.
10 Amended Petition for Initiative, pp. 4-7.
11 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
12 Petition, pp. 12-14.
13 Advisory issued by Court, dated September 22, 2006.
14 Exhibit "B," Memorandum of Petitioner Lambino.
15 Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre

Dame Law Rev., 1911-1912, (May 2005).
16 Ibid.
17 Id. at 1913.
18 Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis:
Casey, Dickerson and the Consequences of Pragmatic Adjudication, 53 Utah Law
Rev. 53, 67 (2002).
19 Id. at 68.
20 Id. at 69.
21 Id. at 67.
22 Id. at 69.
23 Consovoy, supra note 18, at 57.
24 Id. at 58.
25 Id. at 64.
26 Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis,
dissenting).
27 Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter,
concurring).
28 Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens,

dissenting).
29 Barnhart, supra note 15, at 1922.
30 Id. at 1921.
31 Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and
Liberties in the Rehnquist Court, 11 Boston College Third World Law Journal, 335,
343 (Summer 1991).
32 347 U.S. 483 (1954).
33 163 U.S. 537 (1896).
34 G.R. No. 127882, December 1, 2004, 445 SCRA 1.
35 G.R. No. 139465, October 17, 2000, 343 SCRA 377.
36 Barnhart, supra note 15, at 1915.
37 112 S.Ct. 2791 (1992).
38 Section 5(b).
39 Ibid.
40 Santiago v. Commission on Elections, supra note 11, at 145.
41 85 Record of the House of Representatives 140-142 (February 14, 1989).
42 85 Record of the house of representatives 142-143 (February 14, 1989).
43 Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.
44 I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986).
45 Id. at 400, 402-403.
46 v record, constitutional commission 806 (October 10, 1986).
47 Opposition-in-Intervention filed by ONEVOICE, p. 39.
48 Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.
49 Introduction to Political Science, pp. 397-398.
50 Section 1, Art. II of the 1987 Constitution.
51 Eighth Edition, p. 89 (2004).
52 Ibid.
53 Id. at 1346.
54 Ibid.
55 Third Edition, p. 67 (1969).
56 Id. at 68.
57 Id. at 1115.
58 Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46.
59 Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive

Secretary, No. L-361432, March 31, 1973, 50 SCRA 30, 367-368.
60 J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973).

61 E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984).
62 N. Gonzales, Philippine Political Law 30 (1969 ed.).
63 Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991,
194 SCRA 317, 337 quoting Commonwealth v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).
64 L-36142, March 31, 1973, 50 SCRA 30, 367.
65 i record, constitutional commission 373 (July 8, 1986).
66 The opinion was actually made by Justice Felix Antonio.
67 Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of

Trustees, 37 S.E.2d 322, 327 (1946).
68 T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8th ed. 1927).
69 H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2nd ed. 1897).
70 V. Sinco, supra note 58.
71 Ibid.
72 No. L-1232, 79 Phil. 819, 826 (1948).
73 IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).
74 Id. at 752.

75 Id. at 769.
76 Id. at 767-769.
77 Id. at 377.
78 Id. at 395.
79 Sinco, supra note 58, at 22.
80 Id. at 20-21.
81 Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA
727.
82 G. Wood, The Creation of the American Republic, 530.
83 Sinco, supra note 58, at 29.
84 State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal
App 2d 109 (1946).
85 Town of Whitehall v. Preece, 1998 MT 53 (1998).
86 G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur.
2d, p. 653.
87 Memorandum for petitioner Aumentado, pp. 151-152.
88 Id. at 153-154.

89 L-44640, October 12, 1976, 73 SCRA 333, 360-361.
90 Section 2, Article XVII, 1987 Constitution.
91 Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC.,

et al.
92 Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B,"
Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April 20,
2006 issued by Atty. Marlon S. Casquejo, Annex "C," Memorandum of OppositorIntervenor Pimentel, et al.; Certification dated April 26, 2006 issued by Atty. Marlon
S. Cascuejo, Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
93 Annex "1," Memorandum of Oppositor-Intevenor Antonino.
94 Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al.
95 Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc.
96 Annexes 30-31, Id.
97 Annexes 44-64, Id.
98 Consolidated Reply of Petitioner Aumentado, p. 54.
99 Exhibit "E," Memorandum of Petitioner Lambino.
100 Annex "A," Consolidated Response of Petitioner Aumentado.
101 Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.

102 Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).
103 BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).
104 ASSOCIATE JUSTICE CARPIO:
How many copies of the petition, that you mention(ed), did you print?
ATTY. LAMBINO:
We printed 100 thousand of this petition last February and we
distributed to the different organizations that were volunteering to support us.
ASSOCIATE JUSTICE CARPIO:
So, you are sure that you personally can say to us that 100 thousand of
these were printed?
ATTY. LAMBINO:
It could be more than that, Your Honor.
xxxxxxxxxxxx
But you asked your friends or your associates to re-print, if they can(?)

ATTY. LAMBINO:
Yes, Your Honor.
Okay, so you got 6.3 Million signatures, but you only printed 100
thousand. So you're saying, how many did your friends print of the petition?
ATTY. LAMBINO:
I can no longer give a specific answer to that, Your Honor. I relied
only to the assurances of the people who are volunteering that they are going to
reproduce the signature sheets as well as the draft petition that we have given
them, Your Honor.
xxxxxxxxxxxx
Did you also show this amended petition to the people?
ATTY. LAMBINO:
Your Honor, the amended petition reflects the copy of the original

petition that we circulated, because in the original petition that we filed before the
COMELEC, we omitted a certain paragraph that is, Section 4 paragraph 3 which
were part of the original petition that we circulated and so we have to correct that
oversight because that is what we have circulated to the people and we have to
correct that
But you just stated now that what you circulated was the petition of
August 25, now you are changing your mind, you're saying what you circulated was
the petition of August 30, is that correct?
ATTY. LAMBINO:
In effect, yes, Your Honor.
So, you circulated the petition of August 30, but what you filed in the
COMELEC on August 25 was a different petition, that's why you have to amend it?
ATTY. LAMBINO:
We have to amend it, because there was an oversight, Your Honor, that
we have omitted one very important paragraph in Section 4 of our proposition.
xxxxxxxxxxxx

Okay, let's be clear. What did you circulate when you gathered the
signatures, the August 25 which you said you circulated or the August 30?
ATTY. LAMBINO:
Both the August 25 petition that included all the provisions, Your
Honor, and as amended on August 30. Because we have to include the one that
we have inadvertently omitted in the August 25 petition, Your Honor.
xxxxxxxxxxxx
And (you cannot tell that) you can only say for certain that you printed
100 thousand copies?
ATTY. LAMBINO:
That was the original printed matter that we have circulated by the
month of February, Your Honor, until some parts of March, Your Honor.

That is all you can assure us?
ATTY. LAMBINO:
That is all I can assure you, Your Honor, except that I have asked some
friends, like for example (like) Mr. Liberato Laos to help me print out some more of
this petition (TSN, September 26, 2006, pp. 7-17)
105 Section 2 (1), Article IX C, 1987 Constitution.
106 Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino
C. Hermosisima, Jr. and Justo P. Torres.
107 Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J.
Francisco and Artemio V. Panganiban.
108 Justice Jose C. Vitug.
109 Only fourteen (14) justices participated in the deliberations as Justice Teodoro
R. Padilla took no part on account of his relationship with the lawyer of one of the
parties.
110 Citing conscience as ground.
111 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
112 Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers'
Project, Inc. v. Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d (1987); France v.
Nelson, 292 Ark. 219, 729 S.W. 2d 161 (1987).
113 40 P. 3d 886 (2006).
114 781 P. 2d 973 (Alaska, 1989).
115 Id. at 982-84 (Compton, J., concurring).
116 Id. at 975-78.
117 Negri v. Slotkin, 244 N.W. 2d 98 (1976).
118 112 Fla. 734, 151 So. 284 (1933).
119 Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice
Terrell; Justices Ellis, Brown and Buford are of the opinion that chapter 15938, Acts
of 1933, is a special or local law not duly advertised before its passage, as required
by sections 20 and 21 of article 3 of the state Constitution, and therefore invalid.
This evenly divided vote resulted in the affirmance of the validity of the statute but
did not constitute a binding precedent on the Court.
120 62 S. Ct. 552 (1942).
121 329 F. 2d 541 (1964).
122 239 F. 2d 532 (9th Cir. 1956).
123 Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).
124 331 N.E. 2d 65 (1975).
125 Neil v. Biggers, supra note 108.
126 Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas.

274.
127 Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808,
811, 812; Development Bank of the Philippines v. Pundogar, G.R. No. 96921, January
29, 1993, 218 SCRA 118.
128 No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L29689, April 14, 1978, 82 SCRA 337.
129 Supra note 1.
QUISUMBING, J.:
1 Political questions have been defined as "Questions of which the courts of justice
will refuse to take cognizance, or to decide, on account of their purely political
character, or because their determination would involve an encroachment upon the
executive or legislative powers; e.g., what sort of government exists in a state."
Black's Law Dictionary, p. 1319 citing Kenneth v. Chambers, 14 How. 38, 14 L.Ed.
316.
2 See 1987 Const., Art. XVII, Sec. 2.
3 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
4 G.R. No. 129754, September 23, 1997.
CORONA, J.:
1 Abrams v. United States, 250 U.S. 616.
2 336 Phil. 848 (1997).
3 Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1.

4 Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.
5 Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing State ex
rel. Stenberg v. Beermann, 240 Neb. 754, 485 N.W. 2d 151 (1992).
6 Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236,
47 Ill. Dec. 363, 415 N.E. 2d 368 (1980).
7 Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of Direct
Legislation, The California Roundtable 13 (1981). The American Founding Fathers
recognized that direct democracy posed a profound threat to individual rights and
liberty. The U.S. Constitution was "designed to provide a system of government that
would prevent either a tyranny of the majority or a tyranny of the few." James
Madison "warned against the power of a majority or a minority of the population
'united and actuated by some common impulse of passion, or of interest, adverse to
the rights of other citizens, or to the permanent and aggregate interest of the
community.'
8 Gilbert Hahn & Steven C. Morton, Initiative and Referendum Do They Encourage
or Impair Better State Government? 5 FLA. ST. U. L. REV. 925, 927 (1977).
9 Florida Advisory Council on Intergovernmental Relations, Initiatives and

Referenda: Issues in Citizen Lawmaking (1986).
10 Sec. 1, Article II, Constitution.
11 In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla. 1995).
TINGA, J.:
1 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
2 G.R. No. 129754, 23 September 1997.

3 Petitioner Aumentado aptly refers to the comment of the late Senator Raul Roco
that the Santiago ruling "created a third specie of invalid laws, a mongrel type of
constitutional but inadequate and, therefore, invalid law." Memorandum for
Aumentado, p. 54.
4 See Civil Code, Art. 9.
5 456 Phil. 1 (2003).
6 Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43 (1990) and
Justice Benjamin N. Cardozo, The Nature of the Judicial Process 113 (1921).
7 See Dissenting Opinion, Manila International Airport Authority v. City of

Paraaque, G.R. No. 155650, 20 July 2006. In my ponencia in Globe Telecom v. NTC,
G.R. No. 143964, 26 July 2004, 435 SCRA 110, I further observed that while an
administrative agency was not enslaved to obey its own precedent, it was
"essential, for the sake of clarity and intellectual honesty, that if an administrative
agency decides inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or if need be, why the previous standards should no
longer apply or should be overturned." Id., at 144. Happily, Justice Puno's present
opinion expressly elucidates why Santiago should be reversed.
8 As Justice Frankfurter once wrote: "We recognize that stare decisis embodies an
important social policy. It represents an element of continuity in law, and is rooted in
the psychologic need to satisfy reasonable expectations. But stare decisis is a
principle of policy and not a mechanical formula of adherence to the latest decision,
however recent and questionable, when such adherence involves collision with a
prior doctrine more embracing in its scope, intrinsically sounder, and verified by
experience This Court, unlike the House of Lords, has from the beginning rejected
a doctrine of disability at self-correction." Helvering v. Hallock, 309 U.S. 106, 119121 (1940).
9 351 Phil. 692 (1998).
10As Chief Justice Panganiban then cited: "For instance, Ebralinag vs. Davision
Superintendent of Schools of Cebu, 219 SCRA 256, March 1, 1993, reversed the
Court's 34-year-old doctrine laid down in Gerona vs. Secretary of Education, 106 Phil
2, August 12, 1959, and upheld the right of Jehovah's Witnesses "to refuse to salute

the Philippine flag on account of their religious beliefs." Similarly, Olaguer vs.
Military Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-year-old
ruling in Aquino Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which
recognized the jurisdiction of military tribunals to try civilians for offenses allegedly
committed during martial law. The Court likewise reversed itself in EPZA vs. Dulay,
149 SCRA 305, April 29, 1987, when it vacated its earlier ruling in National Housing
Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the validity of certain
presidential decrees regarding the determination of just compensation. In the much
earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the
Court revoked its holding in Involuntary Insolvency of Mariano Velasco & Co., 55 Phil
353, November 29, 1930, regarding the relation of the insolvency law with the then
Code of Civil Procedure and with the Civil Code. Just recently, the Court, in
Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier
grant of standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA
110, May 5, 1994." Id., at 780.
11 Ibid.
12 129 Phil. 507, 516 (1967).
13 G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.
14 G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15 Ibid.
16 G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17 Id., at 104. Relatedly, the Court held that "[c] ontests which do not involve the
election, returns and qualifications of elected officials are not subjected to the
exercise of the judicial or quasi-judicial powers of courts or administrative
agencies". Ibid.
18 See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel, Jr., et. al.,

pp. 19-22; Memorandum for Intervenor Senate of the Philippines, pp. 34-35.

19 See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 Const, Art. VIII.
20 See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. Jose
Cabatuando, et al., 116 Phil. 736, 741 (1962).
21 See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; citing
Public Service Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also Farias v.
Executive Secretary, G.R. Nos. 147387 & 152161, 10 December 2003, 417 SCRA
503, 519.
22 "As a policy, this Court has adopted a liberal construction of the one title - one
subject rule." Tatad v. Secretary of Department of Energy, 346 Phil. 321, 359 (1997).
23 Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22
February 1991, 194 SCRA 317.
24 Id. at 337. I have previously expressed my own doubts in relying on the

constitutional or legislative deliberations as a definitive source of construction. "It is
easy to selectively cite passages, sometimes out of their proper context, in order to
assert a misleading interpretation. The effect can be dangerous. Minority or solitary
views, anecdotal ruminations, or even the occasional crude witticisms, may
improperly acquire the mantle of legislative intent by the sole virtue of their
publication in the authoritative congressional record. Hence, resort to legislative
deliberations is allowable when the statute is crafted in such a manner as to leave
room for doubt on the real intent of the legislature." Southern Cross Cement
Corporation v. Phil. Cement Manufacturers, G.R. No. G.R. No. 158540, 8 July 2004,
434 SCRA 65, 95.
25 77 Phil. 192 (1946).
26Id. at 215.
27 Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing
Household Finance Corporation v. Shaffner, 203 S.W. 2d 734, 356 Mo. 808.
28 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.
29 G.R. No. 151944, January 20, 2004, 420 SCRA 365.
30 Id., at 377. Emphasis supplied.
31 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.
32From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History

of the Peloponnesian War.
33H. Zinn, A People's History of the United States (1980 ed.), at 95.
CHICO-NAZARIO, J.:
1 The full text of the Preamble reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society and establish a Government that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity the blessings of independence
and democracy under the rule of law and a regime of truth, justice, freedom, love,
equality, and peace, do ordain and promulgate this Constitution.
2 Article XVII, Constitution.
3 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
4 Id. at 157.
5 Id. at 124.

6 Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See
also the more recent cases of Republic v. Nolasco, G.R. No. 155108, 27 April 2005,
457 SCRA 400; and PH Credit Corporation v. Court of Appeals, 421 Phil. 821 (2001).
7 Supra note 2 at 124.
8 G.R. No. 129754.
9 Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution,
dated 23 September 1997, in G.R. No. 129754, PIRMA v. COMELEC, pp. 2-3.
10 Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).
11 Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.
12 Santiago v. Comelec, supra note 2 at 170-171.
13 Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.
VELASCO, JR., J.:
1 G.R. No. 127535, March 19, 1997, 270 SCRA 106.
2 Id.
3 Commission on Audit of the Province of Cebu v. Province of Cebu, G.R. No.

141386, November 29, 2001, 371 SCRA 196, 202.
4 United Harbor Pilots' Association of the Philippines, Inc. v. Association of

International Shipping Lines, Inc., G.R. No. 133763, November 13, 2002, 391 SCRA
522, 533.

5 PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R. No. 109648,
November 22, 2001, 370 SCRA 155, 166-167.
6 Id.
7 Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA 522,
529.
8 G.R. No. 129754, September 23, 1997.
9 V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).
20. TOLENTINO V. COMELEC

G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR,
and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL
CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO
S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA,
Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971
Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing
Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on
Elections "from undertaking to hold a plebiscite on November 8, 1971," at which the
proposed constitutional amendment "reducing the voting age" in Section 1 of Article
V of the Constitution of the Philippines to eighteen years "shall be, submitted" for
ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional
Convention of 1971, and the subsequent implementing resolutions, by declaring
said resolutions to be without the force and effect of law in so far as they direct the
holding of such plebiscite and by also declaring the acts of the respondent
Commission (COMELEC) performed and to be done by it in obedience to the
aforesaid Convention resolutions to be null and void, for being violative of the
Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC,
the Count required that copies thereof be served on the Solicitor General and the
Constitutional Convention, through its President, for such action as they may deem
proper to take. In due time, respondent COMELEC filed its answer joining issues with
petitioner. To further put things in proper order, and considering that the fiscal
officers of the Convention are indispensable parties in a proceeding of this nature,
since the acts sought to be enjoined involve the expenditure of funds appropriated
by law for the Convention, the Court also ordered that the Disbursing Officer, Chief
Accountant and Auditor of the Convention be made respondents. After the petition
was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two
thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist
petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and
even possible confusion, and considering that with the principal parties being duly
represented by able counsel, their interests would be adequately protected already,
the Court had to limit the number of intervenors from the ranks of the delegates to
the Convention who, more or less, have legal interest in the success of the
respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S.
Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion
Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right,
have been allowed to intervene jointly. The Court feels that with such an array of
brilliant and dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their corresponding
motions for leave to intervene or to appear as amicus curiae 1 have been denied,
the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this
case with the records and the Court acknowledges that they have not been without
value as materials in the extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971
came into being by virtue of two resolutions of the Congress of the Philippines
approved in its capacity as a constituent assembly convened for the purpose of
calling a convention to propose amendments to the Constitution namely,
Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and
June 17, 1969 respectively. The delegates to the said Convention were all elected
under and by virtue of said resolutions and the implementing legislation thereof,
Republic Act 6132. The pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be composed of
two elective Delegates from each representative district who shall
have the same qualifications as those required of Members of the
House of Representatives.
xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the
Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different
cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held
its inaugural session on June 1, 1971. Its preliminary labors of election of officers,
organization of committees and other preparatory works over, as its first formal
proposal to amend the Constitution, its session which began on September 27,
1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the
Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE
TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional
Convention:
Section 1. Section One of Article V of the Constitution of the Philippines
is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of
the Philippines not otherwise disqualified by law, who are
(twenty-one) EIGHTEEN years or over and are able to read
and write, and who shall have resided in the Philippines
for one year and in the municipality wherein they propose
to vote for at least six months preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of
the Philippines when approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or
on other portions of the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of
P75,000.00 from its savings or from its unexpended funds for the
expense of the advanced plebiscite; provided, however that should
there be no savings or unexpended sums, the Delegates waive
P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
respondent Comelec "to help the Convention implement (the above) resolution."
The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1
quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132
otherwise known as the Constitutional Convention Act of 1971, may we
call upon you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO
P. MACAPAGAL
DIOSDADO P.
MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional
Convention that it will hold the plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of
separate official ballots, election returns and tally sheets for the use of
said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures
for the printing and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same time
that the Commission will distribute its official and sample ballots to be
used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors'
Governors' statement of the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad
Hoc Committee to implement the Resolution.
This Committee issued implementing guidelines which were approved
by the President who then transmitted them to the Commission on
Elections.
The Committee on Plebiscite and Ratification filed a report on the
progress of the implementation of the plebiscite in the afternoon of
October 7,1971, enclosing copies of the order, resolution and letters of
transmittal above referred to (Copy of the report is hereto attached as
Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the
Convention approved a resolution authored by Delegate Antonio
Olmedo of Davao Oriental, calling for a recess of the Convention from
November 1, 1971 to November 9, 1971 to permit the delegates to
campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as
Annexes 9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24
submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1
and the other implementing resolutions thereof subsequently approved by the
Convention have no force and effect as laws in so far as they provide for the holding
of a plebiscite co-incident with the elections of eight senators and all city, provincial
and municipal officials to be held on November 8, 1971, hence all of Comelec's acts
in obedience thereof and tending to carry out the holding of the plebiscite directed
by said resolutions are null and void, on the ground that the calling and holding of

such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as
a legislative body, and may not be exercised by the Convention, and that, under
Section 1, Article XV of the Constitution, the proposed amendment in question
cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other
hand, respondents and intervenors posit that the power to provide for, fix the date
and lay down the details of the plebiscite for the ratification of any amendment the
Convention may deem proper to propose is within the authority of the Convention
as a necessary consequence and part of its power to propose amendments and that
this power includes that of submitting such amendments either individually or
jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord
with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of
jurisdiction. They contend that the issue before Us is a political question and that
the Convention being legislative body of the highest order is sovereign, and as such,
its acts impugned by petitioner are beyond the control of the Congress and the
courts. In this connection, it is to be noted that none of the respondent has joined
intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the
convention expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of
this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members
of the Court, despite their being divided in their opinions as to the other matters
therein involved, were precisely unanimous in upholding its jurisdiction. Obviously,
distinguished counsel have either failed to grasp the full impact of the portions of
Our decision they have quoted or would misapply them by taking them out of
context.
There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as a
constituent assembly, and, for that matter, those of a constitutional convention
called for the purpose of proposing amendments to the Constitution, which
concededly is at par with the former. A simple reading of Our ruling in that very case
of Gonzales relied upon by intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively, Chief Justice Concepcion held
for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this
Court speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel declared that "the judicial department is the
only constitutional organ which can be called upon to determine the

proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political one declined
to pass upon the question whether or not a given number of votes cast
in Congress in favor of a proposed amendment to the Constitution
which was being submitted to the people for ratification satisfied the
three-fourths vote requirement of the fundamental law. The force of
this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851,
March 4 & 14, 1949), Taada v. Cuenco, (L-10520, Feb. 28, 1957) and
Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the
first we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary for quorum in the
Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber,
purporting to act, on behalf of the party having the second largest
number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representatives districts for the
House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in
these four (4) cases that the issues therein raised were political
questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress (Section 1, Art. VI, Constitution of the Philippines).
It is part of the inherent powers of the people as the repository
sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) to make, and, hence, to amend their
own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power.
(Section 1, Art. XV, Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and members of the House
of Representatives act, not as members of Congress, but as component
elements of a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function, (Of amending
the Constitution) for their authority does not emanate from the
Constitution they are the very source of all powers of government
including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that ours is a government
of laws, not of men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that the Constitution expressly confers
upon the Supreme Court, (And, inferentially, to lower courts.) the
power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treatymaking power.
In short, the issue whether or not a Resolution of Congress acting as
a constituent assembly violates the Constitution is essentially
justiciable not political, and, hence, subject to judicial review, and, to
the extent that this view may be inconsistent with the stand taken in
Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the
Convention is not supreme. Nowhere in his petition and in his oral argument and
memoranda does petitioner point otherwise. Actually, what respondents and
intervenors are seemingly reluctant to admit is that the Constitutional Convention of
1971, as any other convention of the same nature, owes its existence and derives
all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or of a
revolution against an existing government or of a bloodless seizure of power a la
coup d'etat. As to such kind of conventions, it is absolutely true that the convention
is completely without restrain and omnipotent all wise, and it is as to such
conventions that the remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization
can belie the fact that the current convention came into being only because it was
called by a resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present Constitution which
provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for the purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority

of the votes cast at an election at which the amendments are
submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary
powers generally beyond the control of any department of the existing government,
but the compass of such powers can be co-extensive only with the purpose for
which the convention was called and as it may propose cannot have any effect as
part of the Constitution until the same are duly ratified by the people, it necessarily
follows that the acts of convention, its officers and members are not immune from
attack on constitutional grounds. The present Constitution is in full force and effect
in its entirety and in everyone of its parts the existence of the Convention
notwithstanding, and operates even within the walls of that assembly. While it is
indubitable that in its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of
life, liberty or property without due process of law, deny to anyone in this country
the equal protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can
such Convention validly pass any resolution providing for the taking of private
property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session,
suspend the privilege of the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or between such individuals
and the state, in violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot
validly assert, much less exercise, in the light of the existing Constitution, the
simple question arises, should an act of the Convention be assailed by a citizen as
being among those not granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention is correct or not? It is of the
very essence of the rule of law that somehow somewhere the Power and duty to
resolve such a grave constitutional question must be lodged on some authority, or
we would have to confess that the integrated system of government established by
our founding fathers contains a wide vacuum no intelligent man could ignore, which
is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.
We need not go far in search for the answer to the query We have posed. The very
decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors,
reiterates and reinforces the irrefutable logic and wealth of principle in the opinion
written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission,
63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and

the judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to operate
and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the
limitations and restrictions embodied in our Constitution are real as
they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and half centuries.
In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of judicial review

is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to strike conclusions unrelated to actualities. Narrowed
as its functions is in this manner the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty ... the people who are authors
of this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority
of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in consultation rooms and
court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to
the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no
effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December 9,
1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.

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

Upon principle, reason, and authority, we are clearly of the opinion that
upon the admitted facts of the present case, this court has jurisdiction
over the Electoral Commission and the subject matter of the present
controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara,
these postulates just quoted do not apply only to conflicts of authority between the
three existing regular departments of the government but to all such conflicts
between and among these departments, or, between any of them, on the one hand,
and any other constitutionally created independent body, like the electoral tribunals
in Congress, the Comelec and the Constituent assemblies constituted by the House
of Congress, on the other. We see no reason of logic or principle whatsoever, and
none has been convincingly shown to Us by any of the respondents and intervenors,
why the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of the
present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the
Court over the present case. It goes without saying that We do this not because the
Court is superior to the Convention or that the Convention is subject to the control
of the Court, but simply because both the Convention and the Court are subject to
the Constitution and the rule of law, and "upon principle, reason and authority," per
Justice Laurel, supra, it is within the power as it is the solemn duty of the Court,
under the existing Constitution to resolve the issues in which petitioner,
respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it
within the powers of the Constitutional Convention of 1971 to order, on its own fiat,
the holding of a plebiscite for the ratification of the proposed amendment reducing
to eighteen years the age for the exercise of suffrage under Section 1 of Article V of
the Constitution proposed in the Convention's Organic Resolution No. 1 in the
manner and form provided for in said resolution and the subsequent implementing
acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most
accurate and unequivocal statement of the real issue which the Court is called upon
to resolve. Petitioner has very clearly stated that he is not against the constitutional
extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he
has advocated or sponsored in Congress such a proposal, and that, in truth, the
herein petition is not intended by him to prevent that the proposed amendment

here involved be submitted to the people for ratification, his only purpose in filing
the petition being to comply with his sworn duty to prevent, Whenever he can, any
violation of the Constitution of the Philippines even if it is committed in the course
of or in connection with the most laudable undertaking. Indeed, as the Court sees it,
the specific question raised in this case is limited solely and only to the point of
whether or not it is within the power of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said
resolution as well as in the subject question implementing actions and resolution of
the Convention and its officers, at this juncture of its proceedings, when as it is a
matter of common knowledge and judicial notice, it is not set to adjourn sine die,
and is, in fact, still in the preliminary stages of considering other reforms or
amendments affecting other parts of the existing Constitution; and, indeed, Organic
Resolution No. 1 itself expressly provides, that the amendment therein proposed
"shall be without prejudice to other amendments that will be proposed in the future
by the 1971 Constitutional Convention on other portions of the amended section or
on other portions of the entire Constitution." In other words, nothing that the Court
may say or do, in this case should be understood as reflecting, in any degree or
means the individual or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should be allowed to
vote, simply because that issue is not before Us now. There should be no doubt in
the mind of anyone that, once the Court finds it constitutionally permissible, it will
not hesitate to do its part so that the said proposed amendment may be presented
to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the
youth have not blinded them to the absolute necessity, under the fundamental
principles of democracy to which the Filipino people is committed, of adhering
always to the rule of law. Surely, their idealism, sincerity and purity of purpose
cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great
measure, because of the pressure brought to bear upon the Congress of the
Philippines by various elements of the people, the youth in particular, in their
incessant search for a peaceful and orderly means of bringing about meaningful
changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the wellbeing and economic security of the underprivileged classes of our people as well as
those concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of achieving such
lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have
justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not
want confusion and disorder, anarchy and violence; what they really want are law
and order, peace and orderliness, even in the pursuit of what they strongly and
urgently feel must be done to change the present order of things in this Republic of
ours. It would be tragic and contrary to the plain compulsion of these perspectives,
if the Court were to allow itself in deciding this case to be carried astray by

considerations other than the imperatives of the rule of law and of the applicable
provisions of the Constitution. Needless to say, in a larger measure than when it
binds other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and vigor to
the Constitution, by interpreting and construing its provisions in appropriate cases
with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful change is
the only alternative to a violent revolution, this Court would be the last to put any
obstruction or impediment to the work of the Constitutional Convention. If there are
respectable sectors opining that it has not been called to supplant the existing
Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form
part of it, which opinion is not without persuasive force both in principle and in logic,
the seemingly prevailing view is that only the collective judgment of its members as
to what is warranted by the present condition of things, as they see it, can limit the
extent of the constitutional innovations the Convention may propose, hence the
complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of
views, the Court does not consider this case to be properly the one in which it
should discharge its constitutional duty in such premises. The issues raised by
petitioner, even those among them in which respondents and intervenors have
joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon.
The Court considers it to be of the utmost importance that the Convention should
be untrammelled and unrestrained in the performance of its constitutionally as
signed mission in the manner and form it may conceive best, and so the Court may
step in to clear up doubts as to the boundaries set down by the Constitution only
when and to the specific extent only that it would be necessary to do so to avoid a
constitutional crisis or a clearly demonstrable violation of the existing Charter.
Withal, it is a very familiar principle of constitutional law that constitutional
questions are to be resolved by the Supreme Court only when there is no alternative
but to do it, and this rule is founded precisely on the principle of respect that the
Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique
footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the
Convention came into being by a call of a joint session of Congress pursuant to
Section I of Article XV of the Constitution, already quoted earlier in this opinion. We
reiterate also that as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the Constitution,
the Convention and its officers and members are all subject to all the provisions of
the existing Constitution. Now We hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of Section I of Article

XV. This must be so, because it is plain to Us that the framers of the Constitution
took care that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is
the most valued power, second to none, of the people in a constitutional democracy
such as the one our founding fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And because the Constitution affects
the lives, fortunes, future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignty, every degree of care
is taken in preparing and drafting it. A constitution worthy of the people for which it
is intended must not be prepared in haste without adequate deliberation and study.
It is obvious that correspondingly, any amendment of the Constitution is of no less
prepared with as much care and deliberation. From the very nature of things, the
drafters of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent conventions called to amend
the original constitution. Generally, the framers of the latter see to it that their
handiwork is not lightly treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because written constitutions are
people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not
lie in the delegates of any subsequent convention to claim that they may ignore and
disregard such conditions because they are as powerful and omnipotent as their
original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the
number and nature and the scope and extent of the amendments the Convention
may deem proper to propose. Nor does the Court propose to pass on the issue
extensively and brilliantly discussed by the parties as to whether or not the power
or duty to call a plebiscite for the ratification of the amendments to be proposed by
the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of present case, it does
not perceive absolute necessity to resolve that question, grave and important as it
may be. Truth to tell, the lack of unanimity or even of a consensus among the
members of the Court in respect to this issue creates the need for more study and
deliberation, and as time is of the essence in this case, for obvious reasons,
November 8, 1971, the date set by the Convention for the plebiscite it is calling,
being nigh, We will refrain from making any pronouncement or expressing Our views
on this question until a more appropriate case comes to Us. After all, the basis of
this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or
condition in Section 1 of Article XV of the Constitution which is violated by the act of
the Convention of calling for a plebiscite on the sole amendment contained in
Organic Resolution No. 1? The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite. It being indisputable that
the amendment now proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the people on November 8, 1971
is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the
Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt
says distinctly that either Congress sitting as a constituent assembly or a
convention called for the purpose "may propose amendments to this Constitution,"
thus placing no limit as to the number of amendments that Congress or the
Convention may propose. The same provision also as definitely provides that "such
amendments shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted to the
people for their ratification," thus leaving no room for doubt as to how many
"elections" or plebiscites may be held to ratify any amendment or amendments
proposed by the same constituent assembly of Congress or convention, and the
provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the Constitution is as
serious and important an undertaking as constitution making itself. Indeed, any
amendment of the Constitution is as important as the whole of it if only because the
Constitution has to be an integrated and harmonious instrument, if it is to be viable
as the framework of the government it establishes, on the one hand, and
adequately formidable and reliable as the succinct but comprehensive articulation
of the rights, liberties, ideology, social ideals, and national and nationalistic policies
and aspirations of the people, on the other. lt is inconceivable how a constitution
worthy of any country or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters assembled by them for the
purpose. Once the original constitution is approved, the part that the people play in
its amendment becomes harder, for when a whole constitution is submitted to
them, more or less they can assumed its harmony as an integrated whole, and they
can either accept or reject it in its entirety. At the very least, they can examine it
before casting their vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of the document as
a whole. And so also, when an amendment is submitted to them that is to form part

of the existing constitution, in like fashion they can study with deliberation the
proposed amendment in relation to the whole existing constitution and or any of its
parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already
from the fact that under Section 3 of the questioned resolution, it is evident that no
fixed frame of reference is provided the voter, as to what finally will be concomitant
qualifications that will be required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to enjoy the right of suffrage,
there are other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under Section 3, if
a voter would favor the reduction of the voting age to eighteen under conditions he
feels are needed under the circumstances, and he does not see those conditions in
the ballot nor is there any possible indication whether they will ever be or not,
because Congress has reserved those for future action, what kind of judgment can
he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in
the fundamental principles of the constitution the Convention will be minded to
approve. To be more specific, we do not have any means of foreseeing whether the
right to vote would be of any significant value at all. Who can say whether or not
later on the Convention may decide to provide for varying types of voters for each
level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing
substantial changes, if not radical ones, in almost every part and aspect of the
existing social and political order enshrined in the present Constitution. How can a
voter in the proposed plebiscite intelligently determine the effect of the reduction of
the voting age upon the different institutions which the Convention may establish
and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of
an amendment to the Constitution may be validly held, it must provide the voter not
only sufficient time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole. In the context of the present state of
things, where the Convention has hardly started considering the merits of hundreds,
if not thousands, of proposals to amend the existing Constitution, to present to the
people any single proposal or a few of them cannot comply with this requirement.
We are of the opinion that the present Constitution does not contemplate in Section
1 of Article XV a plebiscite or "election" wherein the people are in the dark as to
frame of reference they can base their judgment on. We reject the rationalization
that the present Constitution is a possible frame of reference, for the simple reason
that intervenors themselves are stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the

proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for
the six members of the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment on the
merits of the proposal to allow these eighteen years old to vote. But like the
Convention, the Court has its own duties to the people under the Constitution which
is to decide in appropriate cases with appropriate parties Whether or not the
mandates of the fundamental law are being complied with. In the best light God has
given Us, we are of the conviction that in providing for the questioned plebiscite
before it has finished, and separately from, the whole draft of the constitution it has
been called to formulate, the Convention's Organic Resolution No. 1 and all
subsequent acts of the Convention implementing the same violate the condition in
Section 1, Article XV that there should only be one "election" or plebiscite for the
ratification of all the amendments the Convention may propose. We are not denying
any right of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be submitted
to them not separately from but together with all the other amendments to be
proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution
No. 1 of the Constitutional Convention of 1971 and the implementing acts and
resolutions of the Convention, insofar as they provide for the holding of a plebiscite
on November 8, 1971, as well as the resolution of the respondent Comelec
complying therewith (RR Resolution No. 695) are hereby declared null and void. The
respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance
with the said organic resolution. In view of the peculiar circumstances of this case,
the Court declares this decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
Separate Opinions
MAKALINTAL, J., reserves his vote

I reserve my vote. The resolution in question is voted down by a sufficient majority
of the Court on just one ground, which to be sure achieves the result from the legal
and constitutional viewpoint. I entertain grave doubts as to the validity of the
premises postulated and conclusions reached in support of the dispositive portion of
the decision. However, considering the urgent nature of this case, the lack of time
to set down at length my opinion on the particular issue upon which the decision is
made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and
ruled upon a task that would be premature and pointless at this time I limit
myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable,
forthright and vigorous style. Like him, we do not express our individual views on
the wisdom of the proposed constitutional amendment, which is not in issue here
because it is a matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of constitutional dimension
which, although they would seem to be superfluous because of the reach of the
basic constitutional infirmity discussed in extenso in the main opinion, nevertheless
appear to us to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose piecemeal
amendments and submit each separately to the people for ratification, we are
nonetheless persuaded that (1) that there is no proper submission of title proposed
amendment in question within the meaning and intendment of Section 1 of Article
XV of the Constitution, and (2) that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2
expounded his view, with which we essentially agree, 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. This is what he said:
... 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.
A number of doubts or misgivings could conceivably and logically assail the average
voter. Why should the voting age be lowered at all, in the first place? Why should
the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or
even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no
need of an educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so
well? If the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why is there an unseemly
haste on the part of the Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the
approval this year of this amendment? If this amendment is approved, does it
thereby mean that the 18-year old should now also shoulder the moral and legal

responsibilities of the 21-year old? Will he be required to render compulsory military
service under the colors? Will the age of contractual consent be reduced to 18
years? If I vote against this amendment, will I not be unfair to my own child who will
be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a domain (of
searching questions) the bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany. And the answers
cannot be had except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election
time will not be, sufficiently informed of the meaning, nature and effects of the
proposed constitutional amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are effectively distracted
from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility the need for and the wisdom of
the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the
words, "at an election at which the amendments are submitted to the people for
their ratification," embodied in Section 1 of Article XV of the Constitution, has not
been met.
There is much to be said for the opinion of the Court penned by Justice Barredo,
characterized by clarity and vigor, its manifestation of fealty to the rule of law
couched in eloquent language, that commands assent. As the Constitution occupies
the topmost rank in the hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its supremacy. Thereby
constitutionalism asserts itself. With the view I entertain of what is allowable, if not
indeed required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed novel, not
being controlled by constitutional prescription, definite and certain. Under the
circumstances, with the express recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that would call for its
nullification. Such an approach all the more commends itself to me considering that
what was sought to be done is to refer the matter to the people in whom, according
to our Constitution, sovereignty resides. It is in that sense that, with due respect, I
find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by
reliance on, implicit in the petition and the answer of intervenors, such concepts as

legislative control of the constitutional convention referred to by petitioner on the
one hand or, on the other, the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral argument of petitioner and
counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy
of the Constitution, the applicable provision of which as interpreted by this Court,
should be controlling on both Congress and the Convention. It cannot be denied
though that in at least one American state, that is Pennsylvania, there were
decisions announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the absence of
any authority conferred directly by the fundamental law. The result is a convention
that is subordinate to the lawmaking body. Its field of competence is circumscribed.
It has to look to the latter for the delimitation of its permissible scope of activity. It is
thus made subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding
though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a constitutional
convention may lay claim to an attribute sovereign in character. The Constitution is
quite explicit that it is to the people, and to the people alone, in whom sovereignty
resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what sovereignty connotes. It
has to yield to the superior force of the Constitution. There can then be no basis for
the exaggerated pretension that it is an alter ego of the people. It is to be admitted
that there are some American state decisions, the most notable of which is Sproule
v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different
conclusion. The doctrine therein announced cannot bind us. Our Constitution makes
clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence, subject in
either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional
convention, alike recognized by the Constitution, are coordinate, there being no
superiority of one over the other. Insofar as the constituent power of proposing
amendments to the Constitution is concerned, a constitutional convention enjoys a
wide sphere of autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the legislative body
that the call to a convention must proceed, but once convened, it cannot in any
wise be interfered with, much less controlled by Congress. A contrary conclusion
would impair its usefulness for the delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of the three coordinate
departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A
succinct statement of the appropriate principle that should govern the relationship
between a constitutional convention and a legislative body under American law is

that found in Orfield's work. Thus: "The earliest view seems to have been that a
convention was absolute. The convention was sovereign and subject to no restraint.
On the other hand, Jameson, whose views have been most frequently cited in
decisions, viewed a convention as a body with strictly limited powers, and subject to
the restrictions imposed on it by the legislative call. A third and intermediate view is
that urged by Dodd that a convention, though not sovereign, is a body
independent of the legislature; it is bound by the existing constitution, but not 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
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.
3. It becomes pertinent to inquire then whether the last sentence of Article XV
providing that such amendment shall be valid when submitted and thereafter
approved by the majority of the votes cast by the people at an election is a bar to
the proposed submission. It is the conclusion arrived at by my brethren that there is
to be only one election and that therefore the petition must be sustained as only
when the convention has finished its work should all amendments proposed be
submitted for ratification. That is not for me, and I say this with respect, the
appropriate interpretation. It is true that the Constitution uses the word "election" in
the singular, but that is not decisive. No undue reliance should be accorded rules of
grammar; they do not exert a compelling force in constitutional interpretation.
Meaning is to be sought not from specific language in the singular but from the
mosaic of significance derived from the total context. It could be, if it were not thus,
self-defeating. Such a mode of construction does not commend itself. The words
used in the Constitution are not inert; they derive vitality from the obvious purposes
at which they are aimed. Petitioner's stress on linguistic refinement, while not
implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is provisional
and therefore is not such as was contemplated in this article. I do not find such
contention convincing. The fact that the Constitutional Convention did seek to
consult the wishes of the people by the proposed submission of a tentative
amendatory provision is an argument for its validity. It might be said of course that
until impressed with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading of the Constitution
would support it. The spirit that informs it though would not, for me, be satisfied.
From its silence I deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention ascertains the popular will. In
that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not
silently silent but silently vocal. What I deem the more important consideration is
that while a public official, as an agent, has to locate his source of authority in either

Constitution or statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the Constitution. A
concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty
resides.
4. The constitutional Convention having acted within the scope of its authority, an
action to restrain or prohibit respondent Commission on Elections from conducting
the plebiscite does not lie. It should not be lost sight of that the Commission on
Elections in thus being charged with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative to the conduct of election.
That is a purely executive function vested in it under Article X of the Constitution. 5
It is not precluded from assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case, to submit a
proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At
any rate, it may be implied that under the 1971 Constitutional Convention Act, it is
not to turn a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6
The aforesaid considerations, such as they are, but which for me have a force that I
mind myself unable to overcome, leave me no alternative but to dissent from my
brethren, with due acknowledgement of course that from their basic premises, the
conclusion arrived at by them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.
Separate Opinions
MAKALINTAL, J., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient majority
of the Court on just one ground, which to be sure achieves the result from the legal
and constitutional viewpoint. I entertain grave doubts as to the validity of the
premises postulated and conclusions reached in support of the dispositive portion of
the decision. However, considering the urgent nature of this case, the lack of time
to set down at length my opinion on the particular issue upon which the decision is
made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and
ruled upon a task that would be premature and pointless at this time I limit
myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable,
forthright and vigorous style. Like him, we do not express our individual views on
the wisdom of the proposed constitutional amendment, which is not in issue here
because it is a matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of constitutional dimension
which, although they would seem to be superfluous because of the reach of the
basic constitutional infirmity discussed in extenso in the main opinion, nevertheless
appear to us to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose piecemeal
amendments and submit each separately to the people for ratification, we are
nonetheless persuaded that (1) that there is no proper submission of title proposed
amendment in question within the meaning and intendment of Section 1 of Article
XV of the Constitution, and (2) that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2
expounded his view, with which we essentially agree, 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. This is what he said:
... 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.
A number of doubts or misgivings could conceivably and logically assail the average
voter. Why should the voting age be lowered at all, in the first place? Why should
the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or
even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no
need of an educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so
well? If the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why is there an unseemly
haste on the part of the Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the
approval this year of this amendment? If this amendment is approved, does it
thereby mean that the 18-year old should now also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to render compulsory military
service under the colors? Will the age of contractual consent be reduced to 18
years? If I vote against this amendment, will I not be unfair to my own child who will
be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a domain (of
searching questions) the bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany. And the answers
cannot be had except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election
time will not be, sufficiently informed of the meaning, nature and effects of the
proposed constitutional amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are effectively distracted
from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility the need for and the wisdom of
the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the
words, "at an election at which the amendments are submitted to the people for
their ratification," embodied in Section 1 of Article XV of the Constitution, has not
been met.
There is much to be said for the opinion of the Court penned by Justice Barredo,
characterized by clarity and vigor, its manifestation of fealty to the rule of law
couched in eloquent language, that commands assent. As the Constitution occupies
the topmost rank in the hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its supremacy. Thereby
constitutionalism asserts itself. With the view I entertain of what is allowable, if not
indeed required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed novel, not
being controlled by constitutional prescription, definite and certain. Under the
circumstances, with the express recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that would call for its
nullification. Such an approach all the more commends itself to me considering that
what was sought to be done is to refer the matter to the people in whom, according
to our Constitution, sovereignty resides. It is in that sense that, with due respect, I
find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by
reliance on, implicit in the petition and the answer of intervenors, such concepts as
legislative control of the constitutional convention referred to by petitioner on the
one hand or, on the other, the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral argument of petitioner and
counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy
of the Constitution, the applicable provision of which as interpreted by this Court,
should be controlling on both Congress and the Convention. It cannot be denied
though that in at least one American state, that is Pennsylvania, there were
decisions announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the absence of
any authority conferred directly by the fundamental law. The result is a convention

that is subordinate to the lawmaking body. Its field of competence is circumscribed.
It has to look to the latter for the delimitation of its permissible scope of activity. It is
thus made subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding
though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a constitutional
convention may lay claim to an attribute sovereign in character. The Constitution is
quite explicit that it is to the people, and to the people alone, in whom sovereignty
resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what sovereignty connotes. It
has to yield to the superior force of the Constitution. There can then be no basis for
the exaggerated pretension that it is an alter ego of the people. It is to be admitted
that there are some American state decisions, the most notable of which is Sproule
v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different
conclusion. The doctrine therein announced cannot bind us. Our Constitution makes
clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence, subject in
either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional
convention, alike recognized by the Constitution, are coordinate, there being no
superiority of one over the other. Insofar as the constituent power of proposing
amendments to the Constitution is concerned, a constitutional convention enjoys a
wide sphere of autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the legislative body
that the call to a convention must proceed, but once convened, it cannot in any
wise be interfered with, much less controlled by Congress. A contrary conclusion
would impair its usefulness for the delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of the three coordinate
departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A
succinct statement of the appropriate principle that should govern the relationship
between a constitutional convention and a legislative body under American law is
that found in Orfield's work. Thus: "The earliest view seems to have been that a
convention was absolute. The convention was sovereign and subject to no restraint.
On the other hand, Jameson, whose views have been most frequently cited in
decisions, viewed a convention as a body with strictly limited powers, and subject to
the restrictions imposed on it by the legislative call. A third and intermediate view is
that urged by Dodd that a convention, though not sovereign, is a body
independent of the legislature; it is bound by the existing constitution, but not 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
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.
3. It becomes pertinent to inquire then whether the last sentence of Article XV
providing that such amendment shall be valid when submitted and thereafter
approved by the majority of the votes cast by the people at an election is a bar to
the proposed submission. It is the conclusion arrived at by my brethren that there is
to be only one election and that therefore the petition must be sustained as only
when the convention has finished its work should all amendments proposed be
submitted for ratification. That is not for me, and I say this with respect, the
appropriate interpretation. It is true that the Constitution uses the word "election" in
the singular, but that is not decisive. No undue reliance should be accorded rules of
grammar; they do not exert a compelling force in constitutional interpretation.
Meaning is to be sought not from specific language in the singular but from the
mosaic of significance derived from the total context. It could be, if it were not thus,
self-defeating. Such a mode of construction does not commend itself. The words
used in the Constitution are not inert; they derive vitality from the obvious purposes
at which they are aimed. Petitioner's stress on linguistic refinement, while not
implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is provisional
and therefore is not such as was contemplated in this article. I do not find such
contention convincing. The fact that the Constitutional Convention did seek to
consult the wishes of the people by the proposed submission of a tentative
amendatory provision is an argument for its validity. It might be said of course that
until impressed with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading of the Constitution
would support it. The spirit that informs it though would not, for me, be satisfied.
From its silence I deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention ascertains the popular will. In
that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not
silently silent but silently vocal. What I deem the more important consideration is
that while a public official, as an agent, has to locate his source of authority in either
Constitution or statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the Constitution. A
concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty
resides.
4. The constitutional Convention having acted within the scope of its authority, an
action to restrain or prohibit respondent Commission on Elections from conducting
the plebiscite does not lie. It should not be lost sight of that the Commission on

Elections in thus being charged with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative to the conduct of election.
That is a purely executive function vested in it under Article X of the Constitution. 5
It is not precluded from assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case, to submit a
proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At
any rate, it may be implied that under the 1971 Constitutional Convention Act, it is
not to turn a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6
The aforesaid considerations, such as they are, but which for me have a force that I
mind myself unable to overcome, leave me no alternative but to dissent from my
brethren, with due acknowledgement of course that from their basic premises, the
conclusion arrived at by them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.
22. SANIDAD V COMELEC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose
amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree
No. 991 calling for a national referendum on October 16, 1976 for the Citizens
Assemblies ("barangays") to resolve, among other things, the issues of martial law,
the I .assembly, its replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of his present
powers.1

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 referendum-plebiscite 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
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 referendumplebiscite 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:
(1) Do you want martial law to be continued?
(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.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more
than 120, unless otherwise provided by law, shall include the incumbent President
of the Philippines, representatives elected from the different regions of the nation,
those who shall not be less than eighteen years of age elected by their respective
sectors, and those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the basis of a
uniform and progressive ratio while the sectors shall be determined by law. The
number of representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.
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.
5. The incumbent President shall continue to exercise legislative powers until
martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may,
in order to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments
shall continue in full force and effect.
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 provisions. 6 The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys
that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one,
lying outside the domain of judicial review. We disagree. The amending process both
as to proposal and ratification, raises a judicial question. 8This is especially true in
cases where the power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the
power to propose amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory provisions). After that
period, and the regular National Assembly in its active session, the power to
propose amendments becomes ipso facto the prerogative of the regular National
Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course
has not been followed. Rather than calling the National Assembly to constitute itself
into a constituent assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential Decree
1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for amendments, written in lambent words in
the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive
agreement, or law may shall be heard and decided by the Supreme Court en banc
and no treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme Court has the
last word in the construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in the Constitution,
is in form a delegated and hence a limited power, so that the Supreme Court is
vested with that authorities to determine whether that power has been discharged
within its limits.
Political questions are neatly associated with the wisdom, of the legality of a
actuation of the President would merely be abrutum fulmen. If the Constitution

was valid or not. 10
and the regularity of the procedure adopted for submission of the proposal to the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious
circle. Is it not that the people themselves, by their sovereign act, provided for the
authority and procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people themselves of
course who exercise no power of judicial but by the Supreme Court in whom the
people themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been observed
or not. And, this inquiry must be done a prior not a posterior i.e., before the
submission to and ratification by the people.
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
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
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
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
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 calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be
In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:
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 President. 20 According
to Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as

imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any two or
more types of power, and certainly a total disregard of the separation of powers is,
as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal
times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of the state and its
independent existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even if this means
the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the
more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential
systems of government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must not
only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. 21 John Locke, on the other hand, claims for
the executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power
had not provided.22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a
conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise
his powers and prerogatives under the nineteen hundred and thirtyfive Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim
National Assembly to elect the interim President and the interim Prime
Minister, who shall then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of
the land, and shall remain valid, binding, and effective even after lifting
of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative
powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is
an extremely important factor in any constitutional dictatorship which extends over
a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The
steady increase in executive power is not too much a cause for as the steady
increase in the magnitude and complexity of the problems the President has been
called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis greater than
war. In short, while conventional constitutional law just confines the President's
power as Commander-in-Chief to the direction of the operation of the national
forces, yet the facts of our political, social, and economic disturbances had
convincingly shown that in meeting the same, indefinite power should be attributed
to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
1. As earlier pointed out, the power to legislate is constitutionally consigned to the
interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President opted to
defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the President
(See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign
will, the President decided not to call the interim National Assembly. Would it then
be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's
legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why
he cannot validly discharge the function of that Assembly to propose amendments
to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency and the
Supreme Court in operation, the urges of absolute necessity render it imperative
upon the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and

decline to undertake the amending process would leave the governmental
machineries at a stalemate or create in the powers of the State a destructive
vacuum, thereby impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After
all, constituent assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of
January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President
of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National ReferendumPlebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily
seen. In the Philippines, a republican and unitary state, sovereignty "resides in the
people and all government authority emanates from them.30 In its fourth meaning,
Savigny would treat people as "that particular organized assembly of individuals in
which, according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional legislator, namely
the people, is sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation should be permitted to

permanently fetter all future generations." A constitution is based, therefore, upon a
self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single man.
Rather, they are the collated thoughts of the sovereign will reduced only into
enabling forms by the authority who can presently exercise the powers of the
government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the
people themselves implemented only by the authority of the President. Indeed, it
may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a
particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you
want martial law to be continued? - is a referendum question, wherein the 15-year
olds may participate. This was prompted by the desire of the Government to reach
the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on
the proposed amendments, only those of voting age of 18 years may participate.
This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18
years old and above which will have valid bearing on the results. The fact that the
voting populace are simultaneously asked to answer the referendum question and
the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear
of commingled votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot
box for voters fifteen years of age and under eighteen shall be counted ahead of the
ballots of voters eighteen years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of assessing
public reaction to the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the executive power of

the President. 39 It is participated in by all citizens from the age of fifteen, regardless
of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally
associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total suppression of
that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on
the issues, as he is not interested in winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and clear their adverse views
on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees have
been held by the Civil Service Commission free to participate in public discussion
and even campaign for their stand on the referendum-plebiscite issues. 44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too
short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been living
with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's suffrage amendment
to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski was published in only three consecutive issues of the Official
Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of
the President and Vice President, and the creation of the Commission on Elections,
20 days of publication in three consecutive issues of the Official Gazette was fixed

(Com Act No. 517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to
the specific date when the plebiscite shall be held, but simply states that it "shall be
held not later than three months after the approval of such amendment or revision."
In Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time within
which the people may act. This is because proposal and ratification are not treated
as unrelated acts, but as succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in time; second, it is only
when there is deemed to be a necessity therefor that amendments are to be
proposed, the reasonable implication being that when proposed, they are to be
considered and disposed of presently, and third, ratification is but the expression of
the approbation of the people, hence, it must be done contemporaneously. 47 In the
words of Jameson, "(a)n alteration of the Constitution proposed today has relation to
the sentiment and the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as waived, and
not again to be voted upon, unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?
2. During the present stage of the transition period, and under, the environmental
amendments to the Constitution as well as set up the required machinery and
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while
Associate Justices Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs.

Enrile (59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus raising
serious doubts as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people.
Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore beyond the competence
and cognizance of this Court, Associate Justice Fernando adheres to his concurrence
in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the constituent power to propose the
amendments, etc., as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or rejection under the
standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino
vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in opposition thereto, as well as the arguments
adduced by the counsels of the parties at the hearing had on October 7 and 8,
1976, three vital issues readily project themselves as the centers of controversy,
namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the environmental
amendments to the Constitution as well as set up the required machineries and

(3) Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically on the matter
of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78
Phil. 1), inceptively announced the dictum thatProposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charges by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive.
If on grounds of expediency scrupulous attention of the judiciary be
needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itselfThe force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and
14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs.
Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a constituent
assembly-violates the Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales vs.
Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786787).
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.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil.
1051)... the term 'political question' connotes, in legal parlance, what it
means in ordinarily parlance, namely, a question of policy in matters

concerning the government of a State, as a body politic. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.'
Otherwise, said qualifications, conditions or limitations - particularly those
prescribed or imposed by the Constitution - would be set at naught." (Javellana vs.
Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional validity
of the presidential acts of proposing amendments to the Constitution and of calling
a referendum-plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise of the authority
claimed or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a question
purely of legality determinable thru interpretation and construction of the letter and
spirit of the Constitution by the Court as the final arbiter in the delineation of
constitutional boundaries and the allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially in
these parlous years, would be to abdicate its constitutional powers, shirk its
constitutional responsibility, and deny the people their ultimate recourse for judicial
determination.
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented both
here and elsewhere. Its solution, I believe, can be found and unraveled only by a
critical assessment of the existing legal order in the light of the prevailing political
and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there be any
such prescription for the amendatory process as invariable there is because one of
the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which

formal changes in the fundamental law may be effected the same would ordinarily
be the controlling criterion for the validity of the amendments sought.
Unfortunately, however, during the present transition period of our political
development, no express provision is extant in the Constitution regarding the
agency or agent by whom and the procedure by which amendments thereto may be
proposed and ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at least two distinctly
in the transition from the old system of government under the 1935 Constitution to
the new one established by the 1973 Constitution.
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 wit-

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.
SEC. 2. Any amendment to, or revision of, this Constitution shall be
unequivocally contemplate amendments after the regular Government shall have
become fully operative, referring as they do to the National Assembly which will
come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the aforesaid first
stage and, if in the affirmative, by whom and in what manner such amendments
may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a
mere declaration of the traditions of a nation but more the embodiment of a
people's hopes and aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to the living social
organism they seek to fashion and govern. If it is conceded that "the political or
philosophical aphorism of one generation is doubted by the next and entirely
discarded by the third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive, progress and endure.
On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present
- which is understandably the most critical - the need for change may be most
pressing and imperative, and to disavow the existence of the right to amend the
Constitution would be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic conception of the
Constitution by depriving it of its means of growth. Such a result obviously could not
have been intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period would come to pass
before the convocation of the interim National Assembly was not anticipated, hence,
the omission of an express mandate to govern the said situation in so far as
amendments are concerned. But such omission through inadvertence should not,
because it cannot, negate the sovereign power of the people to amend the
fundamental charter that governs their lives and their future and perhaps even the
very survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious
mode of amending the Constitution during the transition period. For, while under
Article XVI thereof, proposals for amendment may be made directly by the regular
National Assembly by a vote of at least three-fourths of all its members, under
Section 15 of Article XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the disparity in the vote
requirement are revealing. The can only signify a recognition of the need to
facilitate the adoption of amendments during the second stage of the transition
period so that the interim National Assembly will be able, in a manner of speaking,
to iron out the kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the establishment of the
regular Government. In this contest, therefore, it is inutile speculation to assume
that the Constitution was intended to render impotent or ar the effectuation of
needful change at an even more critical period - the first stage. With greater reason,
therefore, must the right and power to amend the Constitution during the first stage
of te transition period be upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only by
convening the interim National Assembly. That is to say and require that he said
stage must first be brought to an end before any amendment may be proposed and
ratified. Settled jurisprudence does not square with such a proposition. As aptly
noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly
because they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of martial law would last. Indeed, the
framers committed to the sound judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent such
a taint, the matter is solely in the keeping of the President. To thus content that only
by convening the interim National Assembly may the Constitution be amended at
this time would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore,
to sustain such a contention would not only negate the mandate so resoundingly
expressed by the people in two national referenda against the immediate convening
of the interim National Assembly, but as well deride their overwhelming approval of
the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom, then,
may proposals for the amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confuse with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the proposition that, in
default of an express grant thereof, the legislature - traditionally the delegated
repository thereof - may not claim it under a general grant of legislative authority. In

the same vein, neither would it be altogether unassailable to say that because by
constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-making agency and at this stage of the transition
period the law-making authority is firmly recognized as being lodged in the
President, the said constituent power should now logically be in the hands of te
President who may thus exercise it in place of the interim National Assembly.
Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the
power to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours - t o make, and, hence,
to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown
that the people, inadvertently or otherwise, have not delegated that power to
inadvertently or otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it follows of necessity
that the same remains with them for them to exercise in the manner they see fit
and through the agency they choose. And, even if it were conceded that - as it is
reputedly the rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power delegated which
they may not thereafter unilaterally reclaim from the delegate, there would be no
violence donde to such rule, assuming it to be applicable here, inasmuch as that
power, under the environmental circumstance adverted to, has not been delegated
to anyone in the first place. The constituent power during the first stage of the
transition period belongs to and remains with the people, and accordingly may be
exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious
immorality" of the unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso facto members of the
interim National Assembly by the mere fiat of voting for the transitory provisions of
the Constitution. and the stark reality that the unwieldy political monstrosity that
the interim Assembly portended to be would have proven to be a veritable drain on
the meager financial resources of a nation struggling for survival, have
unequivocally put their foot down, as it were, on the convocation thereof. But this
patently salutary decision of the people proved to be double-edged. It likewise
bound the political machinery of the Government in a virtual straight-jacket and
consigned the political evolution of the nation into a state of suspended animation.
Faced with the ensuing dilemma, the people understandably agitated for a solution.
Through consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an
overwhelming sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe will be an
appropriate agency to eventually take over the law-making power and thus pave
the way for the early lifting of martial rule. In pursuit of this sentiment, and to

translate its constraints into concrete action, the Pambansang Katipunan ng
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong
Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan ng
mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come
forward with definitive proposals for the amendment of the Constitution, and,
choosing the President the only political arm of the State at this time through which
that decision could be implemented and the end in view attained as their
spokesman, proposed the amendments under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendumplebiscite are factually not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. 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 being ultra vires. 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 alter ego of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of
the proposed amendments for ratification from the standpoint of time. The thesis
cannot be disputed that a fair submission presupposes an adequate time lapse to
enable the people to be sufficiently enlightened on the merits or demerits of the
amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the crystallization of sentiments
that for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence, unlike
proposals emanating from a legislative body, the same cannot but be said to have
been mulled over, pondered upon, debated, discussed and sufficiently understood
by the great masses of the nation long before they ripened into formal proposals.
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.
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, whose treatise is the latest to be published,
has this summary of what he considers the present state of American law: 'The
Milligan and Duncan cases show plainly that martial law is the public law of
necessity. Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the high Court
has affirmed, an unbending rule of law that the exercise of military power, where
the rights of the citizen are concerned, may, never be pushed beyond what the
exigency requires. If martial law rule survive the necessities on which alone it rests,
for even a single minute it becomes a mere exercise of lawless violence.' Further:
Sterling v. Constantin is of basic importance. Before it, a number of decisions,
including one the highest Court, went or on the theory that the executive had a free
hand in taking martial law measures. Under them, it has been widely supposed that
in proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them. Under Sterling v.
Constantin, where martial law measures impinge upon personal or property rightsnormally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is
not of itself conclusive of the necessity.'" 15
There was likewise an effort on my part to show what for me is the legal effect of
martial law being expressly provided for in the Constitution rather than being solely
predicated on the common law power based on the urgent need for it because of
compelling circumstances incident to the state of actual clash of arms: "It is not to
be lost sight of that the basis for the declaration of martial law in the Philippines is
not mere necessity but an explicit constitutional provision. On the other hand,
Milligan, which furnished the foundation for Sterling and Duncan had its roots in the
English common law. There is pertinence therefore in ascertaining its significance
under that system. According to the noted English author, Dicey: 'Martial law,' in the

proper sense of that term, , in which - it means the suspension of ordinary law and
the temporary government of a country or parts of it be military tribunals, is
unknown to the law of England. We have nothing equivalent to what is called in
France the "Declaration of the State of Siege," under which the authority ordinarily
vested in the civil power for the maintenance of order and police passes entirely to
the army (autorite militaire). This is an unmistakable proof of the permanent
supremacy of the law under our constitution. There was this qualification: 'Martial
law is sometimes employed as a name for the common law right of the Crown and
its servants to repel force by force in the case of invasion, insurrection, riot, or
generally of any violent resistance to the law. This right, or power, is essential to the
very existence of orderly government, and is most assuredly recognized in the most
ample manner by the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown has the right to put
down breaches of the peace. Every subject, whether a civilian or a soldier, whether
what is called a servant of the government,' such for example as a policeman, or a
person in no way connected with the administration, not only has the right, but is,
as a matter of legal duty, bound to assist in putting down breaches of the peace. No
doubt policemen or soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to suppress a riot, but it is
clear that all loyal subjects are bound to take their part in the suppression of
riots." 16
Commitment to such an approach results in my inability to subscribe to the belief
that martial law in terms of what is provided both in the 1935 and the present
Constitution, affords sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering the juristic theory on
which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact that
before the former Congress could meet in regular session anew, the present
Constitution was adopted, abolishing it and providing for an interim National
Assembly, which has not been convened. 18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he spoke
of martial rule as "a device designed for use in the crisis of invasion or rebellion. It
may be most precisely defined as an extension of military government to the
civilian population, the substitution of the will of a military commander for the will of
the people's elected government." 19Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law connotation, less
than duly mindful of the jural effects of its inclusion in the Constitution itself as a
legitimate device for coping with emergency conditions in times of grave danger,
but always subject to attendant limitations in accordance with the fundamental
postulate of a charter's supremacy, I felt justified in concluding: "Happily for the
Philippines, the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy
of liberty possess relevance. lt cannot be said that the martial rule concept of
Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it
can be reconciled with our Constitution. What is undeniable is that President Marcos

has repeatedly maintained that Proclamation No. 1081 was precisely based on the
Constitution and that the validity of acts taken there under could be passed upon by
the Supreme court. For me that is quite reassuring, persuaded as I am likewise that
the week- of Rossiter is opposed to the fundamental concept of our polity, which
puts a premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion his to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on
Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that
as Commander-in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees during the period
Martial Law essential to the security and preservation of the Republic, to the
defense of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the
threat thereof as well as to meet the impact of a worldwide recession, inflation or
economic crisis which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses
Juristic significant in this jurisdiction. What, for me at least, gives caused for concern
is that with the opinion of the Court this intrusion of what I would consider an alien
element in the limited concept of martial law as set forth in the Constitution would
be allowed further incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work approving tile "concentration of
governmental power in a democracy [as] a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last chapter, just
three pages later, he touched explicitly on the undesirable aspect of a constitutional
dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration
of martial law or the passage of an enabling act is a step which must always be
feared and sometimes bitterly resisted, for it is at once an admission of the
incapacity of democratic institutions to defend the order within which they function
and a too conscious employment of powers and methods long ago outlawed as
destructive of constitutional government. Executive legislation, state control of
popular liberties, military courts, and arbitrary executive action were governmental
features attacked by the men who fought for freedom not because they were
inefficient or unsuccessful, but because they were dangerous and oppressive. The
reinstitution of any of these features is a perilous matter, a step to be taken only
when the dangers to a free state will be greater if the dictatorial institution is not
adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the view of
those of my brethren who would accord recognition to the Rossiter concept of
concentration of governmental power in the Executive during periods of crisis. This
is not to lose sight of the undeniable fact that in this country through the zeal, vigor,
and energy lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be found in a
recent address of the First Lady before the delegates to the 1976 international
Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has
been done in so brief 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." 24Further, 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 competence. Again I find myself unable to join readily in that
conviction. It does seem to me that the metes and bounds of the executive domain,
while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction
of the principle that underlies Aquino v. Commission on Elections as to the validity
of the exercise of the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been reached. I
cannot simply ignore the vigorous plea of petitioners that there is a constitutional
deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team
National Assembly. 27 The learned advocacy reflected in the pleadings as well as the
oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave
doubts in my mind that the Aquino doctrine as to the possession of legislative
competence by the President during this period of transition with the interim
lawmaking body not called into session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach would
lose sight of the distinction between matters legislative and constituent. That is
implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In
their casebook published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known authority on
the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the
general grant of legislative power for such grant does not carry with it the right 'to
erect the state, institute the form of its government,' which is considered a function
inherent in the people. Congressional lawmaking authority is limited to the power
of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that
distinction be preserved, then for me the aforecited Aquino decision does not reach
the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well
as that of the then Justice, now Chief Justice, Castro, support for the ruling that the
President cannot be deemed as devoid of legislative power during this transition
stage is supplied by implications from explicit constitutional provisions. 13 That is not
the case with the power to propose amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a
dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far-from-quiescent and static

period a need for al. amendments. I do not feel confident therefore that a negative
vote on my part would be warranted. What would justify the step taken by the
President, even if no complete acceptance be accorded to the view that he was a
mere conduit of the barangays on this matter, is that as noted in both qualified
concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the
legislative and appropriately powers are concerned, is the necessity that unless
such authority be recognized, there may be paralyzation of governmental activities,
While not squarely applicable, such an approach has, to my mind, a persuasive
quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle that
judicial review goes no further than to checking clear infractions of the fundamental
law, except in the field of human rights where a much greater vigilance is required,
That is to make of the Constitution a pathway to rather than a barrier against a
desirable objective. -As shown by my concurring and dissenting opinion in Tolentino
Commission on Elections '34 a pre-martial law decision, the fundamental postulate
that sovereignty resides in the people exerts a compelling force requiring the
judiciary to refrain as much as possible from denying the people the opportunity to
make known their wishes on matters of the utmost import for the life of the nation,
Constitutional amendments fall in that category. I am fortified in that conviction by
the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion
in Aytona v. Castillo,17 Which I consider applicable to the present situation. These
are his words: "It is well settled that the granting of writs of prohibition and
mandamus is ordinarily within the sound discretion of the courts, to be exercised on
equitable principles, and that said writs should be issued when the right to the relief
is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand,
no injunction was issued. This was evident in the dispositive portion where
judgment was rendered "declaring that respondent Executive Secretary had and has
no power to authorize the importation in question; that he exceeded his jurisdiction
in granting said authority; that said importation is not sanctioned by law and is
contrary to its provisions; and that, for lack of the requisite majority, the injunction
prayed for must be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on my part would
necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle
in any way the action taken by petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the rule of law. Even if their contention as
to lack of presidential power be accepted in their entirety, however, there is still
discretion that may be exercised on the matter, prohibition being an equitable
remedy. There are, for me, potent considerations that argue against acceding to the
plea. With the prospect of the interim National Assembly being convened being dim,
if not non- existent, if only because of the results in three previous referenda, there
would be no constitutional agency other than the Executive who could propose
amendments, which, as noted. may urgently press for adoption. Of even greater
weight, to my mind, is the pronouncement by the President that the plebiscite is

intended not only to solve a constitutional anomaly with the country devoid of a
legislative body but also to provide.the machinery be which the termination of
martial law could be hastened. That is a consummation devoutly to be wished. That
does militate strongly against the stand of petitioners. The obstruction they would
pose may be fraught with pernicious consequences. It may not be amiss to refer
anew to what I deem the cardinal character of the jural postulate explicitly affirmed
in both the 1935 and the present Constitutions that sovereignty resides in the
people. So I made clear in Tolentino v. Commission on Elections and thereafter in my
dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their keeping. The
role of leadership is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner sanctioned by law and
with due care that there be no mistake in its appraisal, that should be controlling.
There is all the more reason then to encourage their participation in the power
process. That is to make the regime truly democratic. Constitutional orthodoxy
requires, however, that the fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner, 45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its commitment
to the principle that the amending process gives rise to a justiciable rather than a
political question. So, it has been since the leading case of Gonzales v. Commission
on Election S. 48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The
Executive Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in Mabanag v. Lopez
Vito. 52 This is not to deny that the federal rule in the United States as set forth in
the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent
State court decisions, supply ammunition to such a contention., 51 That may be the
case in the United States, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the illustrious
Claro M. Recto: "It is one of the paradoxes a democracy that the people of times
place more confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty 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.
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 1973
Constitution grants to the incumbent President the constituent power to propose
and approve amendments to the Constitution to be submitted to the people for
ratification in a plebiscite. The 1935 Constitution expressly vests the constituent

power in Congress, be a three-fourths vote of all its members, to propose
amendments or call a constitutional convention for the purpose The 1973
Constitution expressly vests the constituent power in the regular National Assembly
to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the
question of calling such convention to the electorate in an election" (by a majority
vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the constituent
power during the period of transition in the interim National Assembly "upon special
call be the Prime Minister (the incumbent President 3)... by a majority ore of all its
members (to) propose amendments."
Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the
President's questioned decrease proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and
legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case
at bar In therein declaring null and void the acts of the 1971 Constitutional
Convention and of the Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from 21 years to 18
years, and issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the people
As long as an amendment is formulated and submitted under the aegis
of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court ; 8
The real issue here cannot be whether or not the amending process delineated by
the present Constitution may be disregarded in favor of allowing the sovereign
people to express their decision on the proposed amendments, if only because it is
evident that the very Idea of departing from the fundamental law is anachronistic in
the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9
and
-Accordingly barred the plebiscite as improper and premature, since "the provisional
nature of the proposed amendments and the manner of its submission to the people
for ratification or rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution itself', 10 i.e. the

mandatory requirements of the amending process as set forth in the Article on
Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is
clear that where the proposed amendments are violative of the Constitutional
mandate on the amending process not merely for being a "partial amendment" of a
"temporary or provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that
it is only the interim National Assembly, upon special call of the interim Prime
Minister, bu a 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 Constitution
must be complied with. This means, under the teaching of Tolentino that the
proposed amendments must validly come from the constitutional agency vested
with the constituent power to do so, namely, the interim National Assembly, and not
from the executive power as vested in the Prime Minister (the incumbent President)
with the assistance of the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the people for
as was aptly stated by Cooley "Me voice of the people, acting in their sovereign
capacity, can be of legal force only when expressed at the times and under the
conditions which they themselves have prescribed and pointed out by the
Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest
order (and directly elected by the people to speak their voice) is sovereign, in as
such, its acts impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may
be amended, but it is our will that the amendment must be proposed and submitted
to Us for ratification only in the manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power, second to none, of the
people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignity, ever constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and study. It
is obvious that correspondingly, any amendment of the Constitution is of no less
prepared with as much care and deliberation;" and that "written constitutions are
people themselves, in regard to the process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent power
to proposed amendments is the only way to fulfill the express mandate of the
Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting as in of a Comelec resolution banning the use of political taped jingles by
candidates for Constitutional Convention delegates int he special 1970 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 functionary, is a postulate of our system of government. That is to amnifst
fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal heirarchy. The three departments of government in the discharge
of the functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental law."

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
importance of the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify
another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is
not to be allowed to defeat another, if by any reasonable construction
the two can be made to stand together.36
The transcendental constituent power to propose and approve amendments to the
Constitution as well as set up the machinery and prescribe the procedure for the
ratification of his proposals has been withheld from the President (Prime Minister) as
sole repository of the Executive Power, presumably in view of the immense powers
already vested in him by the Constitution but just as importantly, because by the
very nature of the constituent power, such amendments proposals have to be
prepared, deliberated and matured by a deliberative assembly of representatives
such as the interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation of the
l971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power (Congress
or the Constitutional Convention) really determined the amendments to the
Constitution since the proposals were invariably ratified by the people 37 thus:
"although the people have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances attending its
exercise, as effective as one might otherwise think: that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be
determined by the Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of delegates thereto ...
" 38
12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive, Legislative
and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve and to
maintain the Republic against the dangers that threaten it. Such premise imposes
constraints and limitations. For the martial law regime fulfills the constitutional
purpose only if, by reason of martial law measures, the Republic is preserved. If by
reason of such measures the Republic is so transformed that it is changed in its
nature and becomes a State other than republican, then martial law is a failure;
worse, martial law would have become the enemy of the Republic rather than its
defender and preserver." 40
II. On the question of the Court's jurisdiction to pass upon the constitutionality of the
questioned presidential decrees: let it be underscored that the Court has long set at
rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs. Electoral
Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's
"climactic phrase" that "we must never forget that it is a Constitution we are
expounding" and declared the Court's "solemn and sacred" constitutional obligation
of judicial review and laid down the doctrine that the Philippine Constitution as "a
definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that
"when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments . . . but only asserts the solemn
and sacred obliteration entrusted to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and guarantees to
them".
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 limitationsparticularly 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.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino where "the proposed amendment
in question is expressly saddled with reservations which naturally impair, in great
measures, its very essence as a proposed constitutional amendment" and where
"the way the proposal is worded, read together with the reservations tacked to it by
the Convention thru Section 3 of the questioned resolution, it is too much of a
speculation to assume what exactly the amendment would really amount lo in the
end. All in all, as already pointed out in our discussion of movants' first ground, if
this kind of amendment is allowed, the Philippines will appear before the world to be

in the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force", there
can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck
down by this Court which ruled 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," and that there was no proper Submission
wherein the people are in the dark as to frame of reference they can base their
judgment on
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
be beyond the reach of temporary excitement and. popular caprice or passion. It is
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 efficiency. xxx xxx xxx Changes in government are to be feared unless the
benefit is certain. As Montaign says: All great mutations shake and disorder state.
Good does not necessarily succeed evil ;another evil may succeed and a worse'." 49
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
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
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);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet
in the Constitution such as the prohibition against the holding of more than one
office in the government including government-owned or -controlled corporations
would appear to be eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative powers
until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the
President and the interim Batasang Pambansa as well as the regular National
Assembly, as pointed out by Senator Tolentino, with the President continuing to
exercise legislative powers in case of "grave emergency or a threat or imminence
thereof" (without definition of terms) or when said Assemblies "fail or are unable to
act adequately on any matter for any reason that in his judgment requires
immediate action", thus radically affecting provisions of the Constitution governing
the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be
constitutionalized, although their functions, power and composition may be altered
by law. Referendums (which are not authorized in the present 1973 Constitution)
would also be constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the
Constitution may thereafter be effected by referendum, rather than by the rigid and
strict amending process provided presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of these
amendments" shall continue in full force and effect; and Under Amendment No. 9.

the incumbent President is authorized to proclaim the ratification of the
amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may not
be voted upon separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner and with
due circumspection on the proposed amendments amidst the constraints of martial
law is yet another question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and discussion. The facilities
for free debate and discussion over the mass media, print and otherwise are
wanting. The President himself is reported to have observed the timidity of the
media under martial law and to have directed the press to air the views of the
opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing model of
conscientious deliberation, as our youth analyzes the issues "which will affect
generations yet to come" and urge the people to mull over the pros and cons very
carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important
national issues - the creation of a new legislative body and the lifting of
martial law.
On the first issue, it is almost sure that the interim National Assembly
will not be convened, primarily because of its membership. Majority of
the members of the defunct Congress, who are mandated by the
Constitution to become members of the interim National Assembly,
have gained so widespread a notoriety that the mere mention of
Congress conjures the image of a den of thieves who are out to fool the
people most of the time. Among the three branches of government, it
was the most discredited. In fact, upon the declaration of martial law,
some people were heard to mutter that a 'regime that has finally put
an end to such congressional shenanigans could not be all that bad'.
A substitute legislative body is contemplated to help the President in
promulgating laws, and perhaps minimize the issuance of ill-drafted
decrees which necessitate constant amendments. But care should be
taken that this new legislative body would not become a mere rubber
stamp akin to those of other totalitarian countries. It should be given
real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have with
regard to the proposed legislative body is that of abolishing it in case
'there is a need to do so'. As to what would occasion such a need, only
the President himself can determine. This would afford the Chief
Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed
ambivalent attitudes. Some of them, remembering the turmoil that
prevailed before the declaration of martial law, have expressed the
fear that its lifting might precipitate the revival of the abuses of the
past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since
the peace and order situation has already stabilized and the economy
seems to have been parked up.
The regime of martial law has been with us for four years now. No
doubt, martial law has initially secured some reforms for the country
The people were quite willing to participate in the new experiment,
thrilled by the novelty of it all. After the euphoria, however, the people
seem to have gone back to the old ways, with the exception that some
of our freedoms were taken away, and an authoritarian regime
established.
We must bear in mind that martial law was envisioned only to cope
with an existing national crisis, It was not meant to be availed of for a
long period of time, otherwise it would undermine our adherence to a
democratic form of government. In the words of the Constitution.
martiallaw shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires
it'. Since we no longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously rethink the 'necessity'
of prolonging the martial law regime. If we justify the continuance of
martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be
questioned. Even without martial law,.the incumbent Chief Executive
still holds vast powers under the constitution. After all, the gains of the
New Society can be secured without sacrificing the freedom of our
people. If the converse is true, then we might have to conclude that
the Filipinos deserve a dictatorial form of government. The referendum
results will show whether the people themselves have adopted this sad
conclusion.
The response of the people to the foregoing issues will affect
generations yet to come, so they should mull over the pros and cons
very carefully."
6. This opinion by written in the same spirit as the President's exhortations on the
first anniversary of proclamation of the 1973 Constitution that we "let the
Constitution remain firm and stable" so that it may "guide the people", and that we
"remain steadfast on the rule of law and the Constitution" as he recalled his
rejection of the "exercise (of) power that can be Identified merely with a
revolutionary government" that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to
have, whether in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the

Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let
all of us then pass away as a pace in the development of our country.
but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so
long as that Constitution stands, whoever may the man in power be,
whatever may his purpose be, that Constitution will guide the people
and no man, however, powerful he may be, will dare to destroy and
wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law,
having been often induced to exercise power that can be Identified
merely with a revolutionary government, have remained steadfast or
the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to the
Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours,
"to accept invitations to act as resource speakers under Section 5 of Presidential
Decree No. 991, as amended, as well as to take sides in discussions and debates on
the referendum-plebiscite questions under Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented
from the majority resolution, with all due respect, on the ground that the nonparticipation of judges in such public discussions and debates on the referendumplebiscite questions would preserve the traditional non-involvement of the judiciary
in public discussions of controversial issues. This is essential for the maintenance
and enhancement of the people's faith and confidence in the judiciary. The
questions of the validity of the scheduled referendum- plebiscite and of whether
there is proper submission of the proposed amendments were precisely subjudice
by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate
might blemish the image and independence of the judiciary. Aside from the fact that
the fixing of a time limit for the acceptance of their courtesy resignations to avoid
an indefinite state of insecurity of their tenure in office still spends litigants and
their relatives and friends as well as a good sector of the public would be hesitant to
air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have agreed that
we make them of record here, since we understand that the permission given in the
resolution is nevertheless addressed to the personal decision and conscience of
each judge, and these views may he of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the herein
petitions should be dismissed, as in fact I vote for their dismissal, I deem it

imperative that I should state separately the considerations that have impelled me
to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who
have doubts as to whether or not I should have taken part in the consideration and
resolution of these cases. Indeed, it would not be befitting my position in this
Highest Tribunal of the land for me to leave unmentioned the circumstances which
have given cause, I presume, for others to feel apprehensive that my participation
in these proceedings might detract from that degree of faith in the impartiality that
the Court's judgment herein should ordinarily command. In a way, it can be said, of
course, that I am the one most responsible for such a rather problematical situation,
and it is precisely for this reason that I have decided to begin this opinion with a
discussion of why I have not inhibited myself, trusting most confidently that what I
have to say will be taken in the same spirit of good faith, sincerity and purity of
purpose in which I am resolved to offer the same.
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 amendments of the Constitution might be considered necessary for the
establishment of such substitute interim legislature. In the aforementioned session
of the Executive Committee of the Katipunan, I discourse on the indispensability of a
new interim legislative body as the initial step towards the early lifting of martial
law and on the fundamental considerations why in our present situation a
constitutional convention would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral
Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no
uncertain terms the plan to call a constitutional convention. I reiterated the same
views on September 7, 1976 at the initial conference called by the Comelec in the
course of the information and educational campaign it was enjoined to conduct on
the subject. And looking back at the subsequent developments up to September 22,
1976, when the Batasang Bayan approved and the President signed the now
impugned Presidential Decree No. 1033, it is but human for me to want to believe
that to a certain extent my strong criticisms and resolute stand against any other
alternative procedure of amending the Constitution for the purpose intended had
borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for
all I have done, was not altogether mine alone. The truth of the matter is that
throughout the four years of this martial law government, it has always been my
faith, as a result of casual and occasional exchanges of thought with President
Marcos, that when the appropriate time does come, the President would somehow
make it known that in his judgment, the situation has already so improved as to
permit the implementation, if gradual, of the constitutionally envisioned evolution of
our government from its present state to a parliamentary one. Naturally, this would
inevitably involve the establishment of a legislative body to replace the abortive
interim National Assembly. I have kept tract of all the public and private
pronouncements of the President, and it was the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one way or another,
the materialization of the forthcoming referendum-plebiscite. In other words, in the
final analysis, it was the President's own attitude on the matter that made it
opportune for me to articulate my own feelings and Ideas as to how the nation can
move meaningfully towards normalization and to publicly raise the issues that have
been ventilated by the parties in the instant cases.
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 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.
It is my considered opinion that unlike in the cases of judges in the lower courts, the
Constitution does not envisage compulsory disqualification or inhibition in any case
by any member of the Supreme Court. The Charter establishes a Supreme Court
"composed of a Chief Justice and fourteen Associate Justices", with the particular
qualifications therein set forth and to be appointed in the manner therein provided.
Nowhere in the Constitution is there any indication that the legislature may
designate by law instances wherein any of the justices should not or may not take
part in the resolution of any case, much less who should take his place. Members of
the Supreme Court are definite constitutional officers; it is not within the power of
the lawmaking body to replace them even temporarily for any reason. To put it the
other way, nobody who has not been duly appointed as a member of the Supreme
Court can sit in it at any time or for any reason. The Judicial power is vested in the
Supreme Court composed as the Constitution ordains - that power cannot be
exercised by a Supreme Court constituted otherwise. And so, when as in the instant
where, if any of the member of Court is to abstain from taking part, there would be
no quorum - and no court to render the decision - it is the includible duty of all the
incumbent justices to participate in the proceedings and to cast their votes,
considering that for the reasons stated above, the provisions of Section 9 of the
Judiciary Act do not appear to conform with the concept of the office of Justice of the
Supreme Court contemplated in the Constitution.
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 ingrained in the distribution of powers in the
fundamental law that hand in hand with the vesting of the judicial
power upon the Court, the Constitution has coevally conferred upon it
the discretion to determine, in consideration of the constitutional
prerogatives granted to the other Departments, when to refrain from
imposing judicial solutions and instead defer to the judgment of the
latter. It is in the very nature of republican governments that certain
matters are left in the residual power of the people themselves to
resolve, either directly at the polls or thru their elected representatives
in the political Departments of the government. And these reserved
matters are easily distinguishable by their very nature, when one
studiously considers the basic functions and responsibilities entrusted
by the charter to each of the great Departments of the government. To
cite an obvious example, the protection, defense and preservation of
the state against internal or external aggression threatening its very
existence is far from being within the ambit of judicial responsibility.
The distinct role then of the Supreme Court of being the final arbiter in
the determination of constitutional controversies does not have to be
asserted in such contemplated situations, thereby to give way to the
ultimate prerogative of the people articulated thru suffrage or thru the
acts of their political representatives they have elected for the
purpose.
Indeed, these fundamental considerations are the ones that lie at the base of what
is known in American constitutional law as the political question doctrine, which in
that jurisdiction is unquestionably deemed to be part and parcel of the rule of law,
exactly like its apparently more attractive or popular opposite, judicial activism,
which is the fullest exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has been invoked and applied by this Court in
varied forms and mode of projection in several momentous instances in the past,

(Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366;
Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino,
77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654;
Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute
Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main
support of the stand of the Solicitor General on the issue of jurisdiction in the cases
at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But
as the nomenclatures themselves imply, activism and self- restraint are both
subjective attitudes, not inherent imperatives. The choice of alternatives in any
particular eventuality is naturally dictated by what in the Court's considered opinion
is what the Constitution envisions should be by in order to accomplish the
objectives of government and of nationhood. And perhaps it may be added here to
avoid confusion of concepts, that We are not losing sight of the traditional approach
based on the doctrine of separation of powers. In truth, We perceive that even
under such mode of rationalization, the existence of power is secondary, respect for
the acts of a co-ordinate, co-equal and independent Department being the general
rule, particularly when the issue is not encroachment of delimited areas of functions
but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379383.)
Applying the foregoing considerations to the cases at bar, I hold that the Court has
jurisdiction to pass on the merits of the various claims of petitioners. At the same
time, however, I maintain that the basic nature of the issues herein raised requires
that the Court should exercise its constitutionally endowed prerogative to refrain
from exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts Us stems
from the absence of any clear and definite express provision in the Charter
applicable to the factual milieu herein involved. The primary issue is, to whom,
under the circumstances, does the authority to propose amendments to the
Constitution property belong? To say, in the light of Section 15 of Article XVII of the
Charter, that that faculty lies in the interim National Assembly is to beg the main
question. Indeed, there could be no occasion for doubt or debate, if it could ' only be
assumed that the interim National Assembly envisaged in Sections 1 and 2 of the
same Article XVII may be convoked. But precisely, the fundamental issue We are
called upon to decide is whether or not it is still constitutionally possible to convene
that body. And relative to that question, the inquiry centers on whether or not the
political developments since the ratification of the Constitution indicate that the
people have in effect enjoined the convening of the interim National Assembly
altogether. On this score, it is my assessment that the results of the referenda of
January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the
great majority of our people, for reasons plainly obvious to anyone who would
consider the composition of that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention together with its own
members, are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people
should be given effect without a formal amendment of the Constitution is something
that constitutional scholars may endlessly debate on. What cannot be disputed,
however, is that the government and the nation have acquiesced to, it and have

actually operated on the basis thereof. Proclamation 1103 which, on the predicate
that the overwhelming majority of the people desire that the interim Assembly be
not convened, has ordained the suspension of its convocation, has not been
assailed either judicially or otherwise since the date of its promulgation on January
17, 1973.
In these premises, it is consequently the task of the Court to determine what, under
these circumstances, is the constitutional relevance of the interim National
Assembly to any proposal to amend the Constitution at this time. It is my
considered opinion that in resolving that question, the Court must have to grapple
with the problem of what to do with the will of the people, which although
manifested in a manner not explicitly provided for in the Constitution, was
nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence of well-meaning, if insufficiently
substantial dissent. Such being the situation, I hold that it is not proper for the Court
to interpose its judicial authority against the evident decision of the people and
should leave it to the political department of the government to devise the ways
and means of resolving the resulting problem of how to amend the Constitution, so
long as in choosing the same, the ultimate constituent power is left to be exercised
by the people themselves in a well- ordered plebiscite as required by the
fundamental law.
-2Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter in the
manner provided in Presidential Decree 1033, I hold that in the peculiar situation in
which the government is today, it is not incompatible with the Constitution for the
President to propose the subject amendments for ratification by the people in a
formal plebiscite under the supervision of the Commission on Elections. On the
contrary, in the absence of any express prohibition in the letter of the Charter, the
Presidential Decree in question is entirely consistent with the spirit and the
principles underlying the Constitution. The correctness of this conclusion should
become even more patent, when one considers the political developments that the
people have brought about since the ratification of the Constitution on January
17,1973.
I consider it apropos at this juncture to repeat my own words in a speech I delivered
on the occasion of the celebration of Law Day on September 18, 1975 before the
members of the Philippine Constitution Association and their guests:
To fully comprehend the constitutional situation in the Philippines
today, one has to bear in mind that, as I have mentioned earlier, the
martial law proclaimed under the 1935 Constitution overtook the
drafting of the new charter by the Constitutional Convention of 1971. It
was inevitable, therefore, that the delegates had to take into account
not only the developments under it but, most of all, its declared
objectives and what the President, as its administrator, was doing to
achieve them. In this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly voted down to signify

the determination of the delegates to finish earliest their work, thereby
to accomplish the mission entrusted to them by the people to
introduce meaningful reforms in our government and society. Indeed,
the constituent labors gained rapid tempo, but in the process, the
delegates were to realize that the reforms they were formulating could
be best implemented if the martial law powers of the President were to
be allowed to subsist even after the ratification of the Constitution they
were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed
cures and can, therefore, be immediately in full force and effect after
ratification. Not so, with our 1973 Constitution, Yes, according to the
Supreme Court, 'there is no more judicial obstacle to the new
Constitution being considered in force and effect', but in truth, it is not
yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to distinguish
between the body or main part thereof and its transitory provisions. It is imperative
to do so because the transitory provisions of our Constitution are extraordinary in
the sense that obviously they have been designed to provide not only for the
transition of our government from the presidential form under the past charter to a
parliamentary one as envisaged in the new fundamental law, but also to
institutionalize, according to the President, the reforms introduced thru the exercise
of his martial law powers. Stated differently, the transitory provisions, as it has
turned out, has in effect established a transition government, not, I am sure,
perceived by many. It is a government that is neither presidential nor parliamentary.
It is headed, of course, by President Marcos who not on retains all his powers under
the 1935 Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and does legislate
alone. But to be more accurate, I should say that he legislates alone in spite of the
existence of the interim National Assembly unequivocally ordained by the
Constitution, for the simple reason that he has suspended the convening of said
assembly by issuing Proclamation No. 1103 purportedly 'in deference to the
sovereign will of the Filipino people' expressed in the January 10-15, 1973
referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people, and after the
votes were counted and the affirmative majority known, we were told that the
resulting ratification was subject to the condition that the interim National Assembly
evidently established in the Constitution as the distinctive and indispensable
element of a parliamentary form of government should nevertheless be not
convened and that no elections should be held for about seven years, with the
consequence that we have now a parliamentary government without a parliament
and a republic without any regular election of its officials. And as you can see, this
phenomenon came into being not by virtue of the Constitution but of the direct
mandate of the sovereign people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly or
unwittingly, a direct democracy through the Citizens Assemblies created by
Presidential Decree No. 86, which later on have been transformed into barangays, a
system of government proclaimed by the President as 'a real achievement in

participatory democracy.' What I am trying to say, my friends, is that as I perceive
it, what is now known as constitutional authoritarianism means, in the final analysis,
that the fundamental source of authority of our existing government may not be
necessarily found within the four corners of the Constitution but rather in the results
of periodic referendums conducted by the Commission on Elections in a manner
well known to all of us This, as I see it, is perhaps what the President means by
saying that under the new Constitution he has extra-ordinary powers independently
of martial law - powers sanctioned directly by the people which may not even be
read in the language of the Constitution. in brief, when we talk of the rule of law
nowadays, our frame of reference should not necessarily be the Constitution but the
outcome of referendums called from time to time by the President. The sooner we
imbibe this vital concept the more intelligent will our perspective be in giving our
support and loyalty to the existing government. What is more, the clearer will it be
that except for the fact that all the powers of government are being exercised by
the President, we - do not in reality have a dictatorship but an experimental type of
direct democracy."
In the foregoing disquisition, I purposely made no mention of the referendum of
February 27, 1975. It is important to note, relative to the main issue now before Us,
that it was originally planned to ask the people in that referendum whether or not
they would like the interim National Assembly to convene, but the Comelec to whom
the task of preparing the questions was assigned was prevailed upon not to include
any -such question anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members of the old Congress
concerned that that matter had already been finally resolved in the previous
referenda of January and July 1973 in the sense that. the Assembly should not be
convened comparable to res adjudicata.
It is my position that as a result of the political developments since January 17,
1973 the transitory provisions envisioning the convening of the interim National
Assembly have been rendered legally inoperative. There is no doubt in my mind
that for the President to convoke the interim National Assembly as such would be to
disregard the will of the people - something no head of a democratic republican
state like ours should do. And I find it simply logical that the reasons that motivated
the people to enjoin the convening of the Assembly - the unusually large and
unmanageable number of its members and the controversial morality of its
automatic composition consisting of all the incumbent elective national executive
and legislative officials under the Old Constitution who would agree to join it and the
delegates themselves to the Convention who had voted in favor of the Transitory
Provisions - apply not only to the Assembly as an ordinary legislature but perhaps
more to its being a constituent body. And to be more realistic, it is but natural to
conclude that since the people are against politicians in the old order having
anything to do with the formulation of national policies, there must be more reasons
for them to frown on said politicians taking part in amendment of the fundamental
law, specially because the particular amendment herein involved calls for the
abolition of the interim National Assembly to which they belong and its substitution
by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution is
not contemplated. I disagree. It is inconsistent with the plenary power of the people

to give or withhold their assent to a proposed Constitution to maintain that they can
do so only wholly. I cannot imagine any sound principle that can be invoked to
support the theory that the proposing authority can limit the power of ratification of
the people. As long as there are reliable means by which only partial approval can
be manifested, no cogent reason exists why the sovereign people may not do so.
True it is that no proposed Constitution can be perfect and it may therefore be taken
with the good and the bad in it, but when there are feasible ways by which it can be
determined which portions of it, the people disapprove. it would be stretching
technicality beyond its purported office to render the final authority - the people
impotent to act according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding the
legal feasibility of qualified ratification. Proclamation 1103 categorically declares
that:
WHEREAS, fourteen million nine hundred seventy six thousand five
hundred sixty-one (14,976.561) members of all the Barangays voted
for the adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; but a majority of those who approved the new
Constitution conditioned their votes on the demand that the interim
National Assembly provided in its Transitory Provisions should not be
convened.
and in consequence, the President has acted accordingly by not convening the
Assembly. The above factual premises of Proclamation 1103 is not disputed by
petitioners. Actually, it is binding on the Court, the same being a political act of a
coordinate department of the government not properly assailed as arbitrary or
whimsical. At this point, it must be emphasized in relation to the contention that a
referendum is only consultative, that Proclamation 1103, taken together with
Proclamation 1102 which proclaimed the ratification of the Constitution, must be
accorded the same legal significance as the latter proclamation, as indeed it is part
and parcel if the Act of ratification of the Constitution, hence not only persuasive
but mandatory. In the face of the incontrovertible fact that the sovereign people
have voted against the convening of the interim National Assembly, and faced with
the problem of amending the Constitution in order precisely to implement the
people's rejection of that Assembly, the problem of constitutional dimension that
confronts Us, is how can any such amendment be proposed for ratification by the
people?
To start with, it may not be supposed that just because the office or body designed
by the constitutional convention to perform the constituent function of formulating
proposed amendments has been rendered inoperative by the people themselves,
the people have thereby foreclosed the possibility of amending the Constitution no
matter how desirable or necessary this might be. In this connection, I submit that by
the very nature of the office of the Presidency in the prevailing scheme of
government we have - it being the only political department of the government in
existence - it is consistent with basic principles of constitutionalism to acknowledge
the President's authority to perform the constituent function, there being no other
entity or body lodged with the prerogative to exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by
petitioners that with the non-convening of the interim Assembly, the legislative
authority has perforce fallen into the hands of the President, if only to avoid a
complete paralysis of law-making and resulting anarchy and chaos. It is likewise
conceded that the provisions of Section 3 (2) of Article XVII invest the President with
legislative power for the duration of the transition period. From these premises, it is
safe to conclude that in effect the President has been substituted by the people
themselves in place of the interim Assembly. Such being the case, the President
should be deemed as having been granted also the cognate prerogative of
proposing amendments to the Constitution. In other words, the force of necessity
and the cognate nature of the act justify that the department exercising the
legislative faculty be the one to likewise perform the constituent function that was
attached to the body rendered impotent by the people's mandate. Incidentally, I
reject most vehemently the proposition that the President may propose
amendments to the Constitution in the exercise of his martial law powers. Under
any standards, such a suggestion cannot be reconciled with the Ideal that a
Constitution is the free act of the people.
It was suggested during the oral, argument that instead of extending his legislative
powers by proposing the amendment to create a new legislative body, the President
should issue a decree providing for the necessary apportionment of the seats in the
Regular National Assembly and call for an election of the members thereof and thus
effect the immediate normalization of the parliamentary government envisaged in
the Constitution. While indeed procedurally feasible, the suggestion overlooks the
imperative need recognized by the constitutional convention as may be inferred
from the obvious purpose of the transitory provisions, for a period of preparation
and acquaintance by all concerned with the unfamiliar distinctive features and
practices of the parliamentary system. Accustomed as we are to the presidential
system, the Convention has seen to it that there should be an interim parliament
under the present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present system to the new
one. I do not believe this pattern set by the convention should be abandoned.
The alternative of calling a constitutional convention has also been mentioned. But,
in the first place, when it is considered that whereas, under Section 1 (1) and (2) of
Article XVI, the regular National Assembly may call a Constitutional Convention or
submit such a call for approval of the people, Section 15 of Article XVII, in reference
to interim National Assembly, does not grant said body the prerogative of calling a
convention, one can readily appreciate that the spirit of the Constitution does not
countenance or favor the calling of a convention during the transition, if only
because such a procedure would be time consuming, cumbersome and expensive.
And when it is further noted that the requirement as to the number of votes needed
for a proposal is only a majority, whereas it is three-fourths in respect to regular
Assembly, and, relating this point to the provision of Section 2 of Article XVI to the
effect that all ratification plebiscites must be held "not later than three months after
the approval" of the proposed amendment by the proposing authority, the adoption
of the most simple manner of amending the charter, as that provided for in the
assailed Presidential Decree 1033 suggests itself as the one most in accord with the
intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the
Constitution for the purpose of amending or changing the same. To cite but one
important precedent, as explained by Mr. Justice Makasiar in his concurring opinion
in Javellana 2, the present Constitution of the United States was neither proposed
nor ratified in the manner ordained by the original charter of that country, the
Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly has been
effectuated through a referendum-plebiscite in January, 1973, and ratified expressly
and impliedly in two subsequent referenda, those of July, 1973 and February, 1975,
why may not a duly held plebiscite suffice for the purpose of creating a substitute
for that Assembly? It should be borne in mind that after all, as indicated in the
whereas of the impugned Presidential Decree, actually, the proposed amendments
were initiated by the barangays and sanggunian members. In other words, in
submitting the amendments for ratification, the President is merely acting as the
conduit thru whom a substantial portion of the people, represented in the Katipunan
ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the
people as a whole of the amendments in question. If all these mean that the
sovereign people have arrogated unto themselves the functions relative to the
amendment to the Constitution, I would regard myself as totally devoid of legal
standing to question it, having in mind that the most fundamental tenet on which
our whole political structure rests is that "sovereignty resides in the people and all
government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree No. 1033
does not infringe the Constitution, if only because the specific provision it is
supposed to infringe does not exist in legal contemplation since it was coevally
made inoperative when the people ratified the Constitution on January 17, 1973. I
am fully convinced that there is nothing in the procedure of amendment contained
in said decree that is inconsistent with the fundamental principles of
constitutionalism. On the contrary, I find that the Decree, in issue conforms
admirably with the underlying tenet of our government - the sovereignty and
plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the
people to sufficiently comprehend the issues and intelligently vote in the
referendum and plebiscite set by Presidential Decree 1033, all I can say is that while
perhaps my other colleagues are right in holding that the period given to the people
is adequate, I would leave it to the President to consider whether or not it would be
wiser to extend the same. Just to avoid adverse comments later I wish the President
orders a postponement. But whether such postponement is ordered or not, date of
the referendum- plebiscite anywhere from October 16, 1976 to any other later date,
would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided
ultimately by the people in their sovereign capacity, the question is political as the

term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to
any judicial inquiry, for the reasons stated in Our opinion in Javellana, et al. vs.
Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al.
(L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et
al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary,
et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for
amendment is not important Ratification by the people is all that is indispensable to
validate an amendment. Once ratified, the method of making the proposal and the
period for submission become relevant.
The contrary view negates the very essence of a republican democracy - that the
people are sovereign - and renders meaningless the emphatic declaration in the
very first provision of Article II of the 1973 Constitution that the Philippines is a
republican state, sovereignty resides in the people and all government authority
emanates from them. It is axiomatic that sovereignty is illimitable The
representatives cannot dictate to the sovereign people. They may guide them; but
they cannot supplant their judgment, Such an opposite view likewise distrusts the
wisdom of the people as much as it despises their intelligence. It evinces a
presumptuous pretension to intellectual superiority. There are thousands upon
thousands among the citizenry, who are not in the public service, who are more
learned and better skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31,
1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator of
martial rule during the period of martial law can legislate; and that he has the
discretion as to when the convene the interim National Assembly depending on
prevailing conditions of peace and order. In view of the fact that the interim National
Assembly has not been convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains the lone lawmaking authority while martial law subsists. Consequently, he can also exercise the
power of the interim National Assembly to propose amendments to the New
Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L44684), former delegate to the 1971 Constitutional Convention which drafted the
1973 Constitution. the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a constituent power, it stands
to reason that the President can likewise legally propose amendments to the
fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political question". It must be
noted that this device has been utilized by the judiciary "to avoid determining
questions it is ill equipped to determine or that could be settled in any event only
with the effective support of the political branches." 1 According to Weston, judges,
whether "personal representatives of a truly sovereign king, or taking their seats as
the creatures of a largely popular sovereignty speaking through a written
constitution, derive their power by a delegation, which clearly or obscurely as the
case may be, deliminates and delimits their delegated jurisdiction.* * * Judicial

questions * * * are those which the sovereign has set to be decided in the courts.
Political questions, similarly, are those which the sovereign has entrusted to the socalled political departments of government or has reserved to be settled by its own
extra-government or has reserved to be settled by its own extra-governmental
action." 2 Reflecting a similar concept, this Court has defined a "political question"
as a "matter which is to be exercised by the people in their primary political
capacity or that has been specifically delegated to some other department or
particular officer of the government, with discretionary power to act." 3 In other
words, it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of government. 4
In determining whether an issue falls within the political question category, the
absence of satisfactory creterion for a judicial determination or the appropriateness
of attributing finality to the action of the political departments of government is a
dominant consideration. This was explained by Justice Brennan in Baker v.
Carr, 5 thus :
Prominent on the surface of any case held to involve political question
is found a textually demonstrable constitutional lack of judicially
discoverrable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
the
potentiality
of
embarrassment
from
from
multifarious
pronouncements by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the Constitution to
another branch of government or retained be the people to be decided by them in
their sovereign capacity, or whether that branch exceeds whatever authority has
been committed, is indeed a delicate exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the
ratification by state legislatures of a constitutional amendment is a political
question. On the question of whether the State Legislature could constitutionally
relative an amendment, after the same had been previously rejected by it, it was
held that the ultimate authority over the question was in Congress in the exercise of
its control over the promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its, vitality
through the lapse of time, the Court held that the question was likewise political,
involving "as it does ... an appraisal of a great variety of relevant conditions,
political, social and economic, which can hardly be said to be within the appropriate
range of evidence receivable in a court of justice and as to which it would be an
extravagant extension of juridical authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity of an amendment actually
ratified. On the other hand, these conditions are appropriate for the consideration of
the political departments of the Government. The questions they involve are
essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas
stressed that:
The Constitution grants Congress exclusive power to control
submission off constitutional amendments. Final determination by
Congress their ratification by three-fourths of the States has taken
place 'is conclusive upon the courts.' In the exercise of that power,
Congress, of course, is governed by the Constitution. However, A
whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the
Constitution, call for decisions by apolitical department of questions of
a t@ which this Court has frequently designated 'political.' And
decision of a 'political question' by the political department' to which
the Constitution has committed it 'conclusively binds the judges, as
well as all other officers, citizens and subjects of ... government.
Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted as a part of the
Constitution, learning to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the present
case even by implieding assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over
submission and by ratification of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in
Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the
process of constitutional amendment, involving proposal and ratification, is a
political question. In the Mabang case, the petitioners sought to prevent the
enforcement of a resolution of Congress proposing the "Parity Amendment" to the
Philippine Constitution on the ground that it had not been approved by the threefourths vote of all the members of each house as required be Article XV of the 1935
Constitution. It was claimed that three (3) Senators and eight (8) members of the
House of Representatives had been suspended and that their membership was not
considered in the determination of the three- fourths %- ore In dismissing the
petition on the ground that the question of the validity of the proposal was political,
the Court stated:
"If ratification of an amendment is a political question, a proposal which leads to
ratification has to be a political question. The question to steps complement each
other in a scheme intended to achieve a single objective. It is to be noted that
amendatory process as provided in Section I of Article XV of the Philippine
Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is
no logic in attaching political character to one and withholding that character from
the other. Proposal to amend the Constitution is a highly political function performed
by the Congress in its sovereign legislative capacity and committed to its charge by
the Constitution itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or
not a Resolution of Congress, acting as a constituent assembly - violates the

Constitution is essentially justiciable, not political, and hence, subject to judicial
review." What was involved in Gonzales, however, was not a proposed What was
involved in Gonzales, however, was not a proposed amendment to the Constitution
but an act of Congress, 9 submitting proposed amendments to the Constitution.
Similarly, in Tolentino v. Commission an Elections, 10 what was involved was not the
validity of the proposal to lower the voting age but rather that of the resolution of
the Constitutional Convention submitting the proposal for ratification. The question
was whether piecemeal amendments to the Constitution could submitted to the
people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in
behalf of the people in proposing the amendment. there can be no question that in
the referendums of January, 1973 and in the subsequent referendums the people
had clearly and categorically rejected the calling of the interim National Assembly.
As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng
mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, the Kabataang Barangay organizations and the various sectoral
groups had proposed the replacement of the interim National Assembly. These
barangays and the Sanggunian assemblies are effective instrumentalities through
which the desires of the people are articulated and expressed. The Batasang Bayan
(Legislative Council), composed of nineteen (19) cabinet members and nine (9)
officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang
Bayani voted in their special session to submit directly to the people in a plebiscite
on October 16, 1976 the afore-mentioned constitutional amendments. Through the
Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang
Bayan, the people have expressed their desire not only to abolish the interim
National Assembly, but to replace it with a more representative body acceptable to
them in order to effect the desirable constitutional changes necessary to hasten the
political evolution of the government towards the parliamentary system, while at
the same time ensuring that the gains of the New Society, which are vital to the
welfare of the people, shall be safeguarded. The proposed constitutional
amendments, therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly should have been
convened to propose those amendments pursuant to Section 15 of Article XVII of
the Constitution. This Court, in the case of Aquino v. Commission or
Elections, 11 took judicial notice of the fact that in the referendum of January, 1973,
a majority of those who approved the new 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:
His decision to defer the initial convocation of the byiitttit National
Assembly was supported by the sovereign people at the by referendum
in January, 1973 when the people voted to postpone the convening of
the interim National Assembly until after at least seven (7) years from

the approval of the new Constitution. And the reason why the same
question was eliminated from the questions to be submitted at the
referendum on February 27, 1975, is that even some members of the
Congress and delegates of the Constitutional Convention, who are
already byjso ofitto members of the intetini National Assembly are
against such inclusion; because the issue was already bycciled in the
January, 1973 referendum by the sovereign people indicating thereby
their disenchantment with any Assembly as the former Congress failed
to institutionalize the reforms they demanded and wasted public funds
through endless debates without relieving the suffering of the general
mass of citizenry (p. 302.) The action of the President in suspending
the convening of the interim National Assembly has met the
overwhelming approval of the people in subsequent referenda.
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.
Because of the discrepancy between The People as Voters and the
People as the corporate nation, the voters have no title to consider
themselves the proprietors of the commonwealth and to claim that
their interests are Identical to the public interest. A prevailing plurality
of the voters are not The People. The claim that they are is a bogus
title invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by
demagogue politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested
with the authority of The People. That is why so many crimes are
committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to
propose amendments or to amend the Constitution is part of the inherent power of
the people as the repository of sovereignty in a republican state. While Congress
may propose amendments to the Constitution, it acts pursuant to authority granted
to it by the people through the Constitution. Both the power to propose and the
authority to approve, therefore, inhere in the people as the bearer of the
Constitution making power.

Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority to exercise constituent powers, it follows
from necessity that either the people should exercise that power themselves or
through any other instrumentality they may choose. For Law, like Nature, abhors a
vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for the people in
submitting such proposals for ratification at the plebiscite of 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.
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:

There is nothing in the nature of the submission which should cause
the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box,
and there can never be danger in submitting in an established form to
a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their
Sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people; and the best security
against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode
prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing opinion is
the necessity of ensuring popular control over the constituent power. "If the people
are to control the constituent power - the power to make and change the
fundamental law of the State," observed Wheeler," "the process of Constitutional
change must not be based too heavily upon existing agencies of government."
Indeed, the basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is time that the
people should be 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.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion
of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief
statement it is only to unburden myself of some thoughts which trouble my mind
and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely and at
times precarious road, the burden byeing lightened only by the thought that in this
grave task of administering justice, when matters of conscience are at issue, one
must be prepared to espouse and embrace a rightful cause however unpopular it
may be.

1. That sovereignty resides in the people and all government authority emanates
from them is a fundamental, basic principle of government which cannot be
disputed, but when the people have opted to govern themselves under the mantle
of a written Constitution, each and every citizen, from the highest to the lowliest,
has the sacred duty to respect and obey the Character they have so ordained.
By the Constitution which they establish, they not only tie up he hands
of their official agencies, but their own hands as well; and neither the
officers of the state, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge Cooley although
based on declarations of law of more than a century ago, lays down a principle
which to my mind is one of the enduring cornerstones of the Rule of Law. it is a
principle with which I have been familiar as a student of law under the tutelage of
revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray
will prevail at all times to ensure the existence of a free, stable, and civilized society.
The Filipino people,.wanting to ensure to themselves a democratic republican form
of government, have promulgated a Constitution whereby the power to govern
themselves has been entrusted to and distributed among three branches of
government; they have also mandated in clear and unmistakable terms the method
by which provisions in their fundamental Charter may be amended or revised.
Having done so, the people are bound by these constitutional limitations. For while
there is no surrender or abdication of the people's ultimate authority to amend,
revise, or adopt a new Constitution, sound reason demands that they keep
themselves within the procedural bounds of the existing fundamental law. The right
of the people to amend or change their Constitution if and when the need arises is
not to be denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and
legitimate processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General that the
people, being sovereign, have the authority to amend the Constitution even in a
manner different from and contrary to that expressly provided for in that
instrument, and that the amendatory process is intended more as a limitation of a
power rather than a grant of power to a particular agency and it 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:
. . . the amendatory provisions are called a 'constitution of sovereighty'
because they define the constitutional meaning of 'sovereignty of the
people.' Popular sovereignty, as embodied in the Philippine

Constitution, is not extreme popular sovereignty. As one American
writer put it:
A constitution like the American one serves as a basic check upon the
popular will at any given time. It is the distinctive function of such
written document to classify certain things as legal fundamentals;
these fundamentals may not be changed except by the slow and
cumbersome process of amendment. The people themselves have
decided, in constitutional convention assembled, to limit themselves
ana future generations in the exercise of the sovereign power which
they would otherwise possess. And it is precisely such limitation that
enables those subject to governmental authority to appeal from the
people drunk to the people sober in time of excitement and hysteria.
The Constitution, in the neat phrase of the Iowa court, is the protector
of the people against injury by the .people. *
Truly, what need is there for providing in the Constitution a process by which the
fundamental law may be amended if, after all, the people by themselves can set the
same at naught even in times of peace when civil authority reigns supreme? To go
along with the respondents' theory in this regard is to render written Constitutions
useless or mere "ropes of sand allowing for a government of men instead of one of
laws. For it cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a demagogue,
and where passion overpowers reason, and mass action overthrows legal processes.
History has recorded such instances, and I can think of no better example than that
of Jesus Christ of Judea who was followed and loved by the people while curing the
sick, making the lame walk and the blind see, but shortly was condemned by the
same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon
being incited into action by chief priests and elders of Jerusalem. Yes, to quote once
more from Judge Cooley:
A good Constitution should be beyond the reason 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
sale can be allowed efficiency. .... Changes in government are to be
feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99
N.E. 1, 15,) 3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall,
159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W.,
419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx

It has been said that changes in the constitution may be introduced in
disregard of its provisions; that if the majority of the people desire a
change the majority must be respected, no matter how the change
may be effected; and that the change, if revolution, is peaceful
resolution. ...
We fear that the advocates of this new doctrine, in a zeal to accomplish
an end which the majority of the people desire, have looked at but one
phase of the question, and have not fully considered the terrible
consequences which would almost certainly follow a recognition of the
doctrine for which they contend. It may be that the incorporation of
this amendment in the constitution, even if the constitution has to be
broken to accomplish it, would not of itself produce any serious results.
But if it should be done by sanctioning the doctrine contended for, a
precedent would be set which would plague the state for all future
time. A Banquo's ghost would arise at our incantation which would not
down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so fraught with
danger to republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the
staff This section is a portion of the bill of rights, and is as follows: 'All political
power is inherent in the people. Government is instituted for the protection,
security, and benefit of of the people; and they have the right at all times to alter or
reform the same, whenever the public good may require.' Abstractly considered,
there can bye no doubt of the correctness of the propositions embraced in this
suction. These principles are older than constitutions and older than governments.
The people did not derive the rights referred to by on the constitution. and, in their
nature, thee are such that the people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national referendumplebiscite on October 16, 1976 for the purpose, among other things, of amending
certain provisions of the 1973 Constitution are null and void as they contravene the
express provisions on the amending process of the 1973 Constitution laid down in
Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter
which applies during the present transition period. The Opinion of Justice Teehankee
discusses in detail this particular matter.
I would just wish to stress the point that although at present there is no by tterint
National Assembly which may propose amendments to the Constitution, the
existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the
constitutional provisions on the manner of amending the fundamental law. We
cannot cure one infirmity - the existence of a "vacuum" caused by the non-

convening of the interim National Assembly - with another infirmity, that is, doing
violence to the Charter.
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. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the purpose
indicated is a step necessary to restore the state of normalcy in the 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., L-40004, 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 resulting in a
collapse of the government and of the existing social order. (62 SCRA,
pp. 275,347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in the
Charter, and the 1973 Constitution contains provisions in this regard. This is wellexplained in Justice Teehankee's Opinion. The state of necessity brought about by
the current political situation, invoked by the respondents, provides no source of
power to propose amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by inflicting upon it a
wound which nothing can heal commit one assault after the other "until all respect
for the fundamental law is lost and the powers of government are just what those in
authority please to call them?'" 5 Or can we now ignore what this Court, speaking
through Justice Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental law purportedly by
order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take
advantages of the precedent in 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. 6
Respondents emphatically assert that the final word is the people's word and that
ultimately it is in the hands of the people where the final decision rests. (Comment,
pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of
the will of the people a normal political situation and not under the aegis of martial
rule for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now
a plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of
fear as it entails a wide area of curtailment and infringement of individual rights,
such as, human liberty, property rights, rights of free expression and assembly,

protection against unreasonable searches and seizures, liberty of abode and of
travel, and so on.
4. The other issues such as the sufficiency and proper submission of the proposed
amendments for ratification by the people are expounded in Justice Teehankee's
Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the
proposed amendments is the abolition of the interim National Assembly and its
substitution with an "interim Batasang Pambansa their in by in Proposed
amendment No. 6 will permit or allow the concentration of power in one man - the
Executive - Prime Minister or President or whatever you may call him - for it gives
him expressly (which the 1973 Constitution or the 1935 Constitution does not)
legislative powers even during the existence of the appropriate legislative body,
dependent solely on the executive's judgment on the existence of a grave
emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted however by
what can happen in the future, when we shall all be gone. Verily, this is a matter of
grave concern which necessitates full, mature, sober deliberation of the people but
which they can do only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional
Convention which drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a written constitution in
order that their government may be called constitutional. To be
deserving of this name, and to drive away all lanirer of anarchy as well
as of dictatorship whether by one man or a few, it is necessary that
both the government authorities and the people faithfully observe and
obey the constitution, and that the citizens be duly conversant not only
with their rights but also with their duties... 7
Jose P. Laurel who served his people as Justice of the Supreme Court of this country
gave this reminder; the grave and perilous task of halting transgressions and
vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the
Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the
basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033
unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to those
questions which, under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is concerned
with the issues dependent upon the wisdom, not legality, of a particular measure. 1

Here, the question raised is whether the President has authority to propose to the
people amendments to the Constitution which the petitioners claim is vested solely
upon the National Assembly, the constitutional convention called for the purpose,
and the by the National Assembly. This is not a political question since it involves
the determination of conflicting claims of authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a
Resolution of Congress, acting as a constituent assembly, violates the Constitution,
ruled that the question is essentially justiciable, not political, and hence, subject to
judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position
regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting
as a constituent assembly, as well as those of a constitutional convention called for
the purpose of proposing amendments to the constitution. Insofar as observance of
constitutional provisions on the procedure for amending the constitution is
concerned, the issue is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendumplebiscite will help resolve the issue. It is to be noted that under the 1973
Constitution, an interim National Assembly was organized to bring about an orderly
transition from the presidential to the parliamentary system of government.' The
people, however, probably distrustful of the members who are old time politicians
and constitutional delegates who had voted themselves by to membership in the
interim National Assembly, voted against the convening of the said interim
assembly for at least seven years thus creating a political stalemate and a
consequent delay' in the transformation of the government into the parliamentary
system. To resolve the impasse, the President, at the instance of the barangays and
sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by interim
National Assembly with another interim body truly representative of the people in a
reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling
for a national referendum on October -16, 1976 to ascertain the wishes of the
people as to the ways and means that may be available to attain the objective;
providing for a period of educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But the people, through
their barangays, addressed resolutions to the Batasang Bayan, expressing their
desire to have the constitution amended, thus prompting the President to issue
Presidential Decree No. 1033, stating the questions to @ submitted to the people in
the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed from the
interim National Assembly and transferred to the seat of sovereignty itself. Since the
Constitution emanates from the people who are the repository of all political
powers, their authority to amend the Constitution through the means they have
adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not
much reflection is also needed to show that the President did not exercise his
martial law legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry out the will of the
people. Neither could he convene the interim National Assembly, as suggested by

the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at
least seven years.
3. The period granted to the people to consider the proposed amendments is
reasonably long and enough to afford intelligent discussion of the issues to be voted
upon. PD 991 has required the barangays to hold assemblies or meetings to discuss
and debate on the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the representatives of the
people themselves, the people must have already formed a decision by this time on
what stand to take on the proposed amendments come the day for the plebiscite.
Besides, the Constitution itself requires the holding of a plebiscite for the ratification
of an amendment not later than three (3) months after the approval of such
amendment or revision but without setting a definite period within which such
plebiscite shall not be held. From this I can only conclude that the framers of the
Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.
23. REPUBLIC V. CA
G.R. No. 79732 November 8, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS, HENRICO UVERO, ET AL., respondents.
VITUG, J.:

The Republic of the Philippines has sought the expropriation of certain portions of
land owned by the private respondents for the widening and concreting of the
Nabua-Bato-Agos Section, Philippine-Japan Highway Loan (PJHL) road. While the
right of the Republic is not now disputed, the private respondents, however,
demand that the just compensation for the property should be based on fair market
value and not that set by Presidential Decree No. 76, as amended, which fixes
payment on the basis of the assessment by the assessor or the declared valuation
by the owner, whichever is lower. The Regional, Trial Court ruled for the private
respondents. When elevated to it, the Court of Appeals affirmed the trial court's
decision.
Hence, the instant petition by the Republic.
In Export Processing Zone Authority ("EPZA") vs. Dulay, etc. et al., 1 this Court held
the determination of just compensation in eminent domain to be a judicial function
and it thereby declared Presidential Decree No. 76, as well as related decrees,
including Presidential Decree No. 1533, to the contrary extent, as unconstitutional
and as an impermissible encroachment of judicial prerogatives. The ruling, now
conceded by the Republic was reiterated in subsequent cases. 2
The petition for review, despite the aforesaid pronouncement by this Court, has
been given due course upon the pleas of the Solicitor General to have us address
the following concerns:
I
EFFECT OF JUDICIAL DECLARATION OF PD 1533 AS UNCONSTITUTIONAL
AND VOID; UP TO WHEN RETROACTIVELY; EFFECT ON A PENDING
APPEALED CASE WHERE CONSTITUTIONALITY OF PD 1533 NOT
ASSAILED BEFORE COURT A QUO.
II
WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT IN EPZA
VS. HON. DULAY, ETC., ET AL. (G.R. NO. 59603, APRIL 29, 1987)
DECLARING PD 1533 UNCONSTITUTIONAL AND VOID, BE APPLIED IN
THIS CASE.
III
WHETHER OR NOT VALUATION OF LAND SOUGHT FOR EXPROPRIATION
AS APPEARING ON THE TAX DECLARATION BE USED AS PRELIMINARY
BASIS FOR THE TEN PER CENT (10%) DEPOSIT REQUIRED UNDER RULE
67 OF THE REVISED RULES OF COURT, AS AMENDED BEFORE PLAINTIFF
IS PERMITTED ENTRY THEREON.

The last item is not an issue; being merely provisional in character, the matter has
not been questioned by the private respondents. 3 We will thus limit ourselves to
the first two issues which, in turn, really boil down to whether the declaration of
nullity of the law in question should have prospective, not retroactive, application.
The petitioner proposes the affirmative.
Instruction is the brief treatise made by Mr. Justice Isagani A. Cruz, whose words we
quote
There are two views on the effects of a declaration of the
unconstitutionality of a statute.
The first is the orthodox view. Under this rule, as announced in Norton
v. Shelby, an unconstitutional act is not a law; it confers no right; it
imposes no duties; it affords no protection; it creates no office; it is, in
legal contemplation, inoperative, as if it had not been passed. It is
therefore stricken from the statute books and considered never to have
existed at all. Not only the parties but all persons are bound by the
declaration of unconstitutionality, which means that no one may
thereafter invoke it nor may the courts be permitted to apply it in
subsequent cases. It is, in other words, a total nullity.
The second or modern view is less stringent. Under this view, the court
in passing upon the question of constitutionality does not annul or
repeal the statute if it finds it in conflict with the Constitution. It simply
refuses to recognize it and determines the rights of the parties just as
if such statute had no existence. The court may give its reasons for
ignoring or disregarding the law, but the decision affects the parties
only and there is no judgment against the statute. The opinion or
reasons of the court may operate as a precedent for the determination
of other similar cases, but it does not strike the statute from the
statute books; it does not repeal, supersede, revoke, or annul the
statute. The parties to the suit are concluded by the judgment, but no
one else is bound.
The orthodox view is expressed in Article 7 of the Civil Code, providing
that "when the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern. . . . 4
The strict view considers a legislative enactment which is declared unconstitutional
as being, for all legal intents and purposes, a total nullity, and it is deemed as if had
never existed. Here, of course, we refer to the law itself being per se repugnant to
the Constitution. It is not always the case, however, that a law is constitutionally
faulty per se. Thus, it may well be valid in its general import. but invalid in its
application to certain factual situations. To exemplify, an otherwise valid law may be
held unconstitutional only insofar as it is allowed to operate retrospectively such as,

in pertinent cases, when it vitiates contractually vested rights. To that extent, its
retroactive application may be so declared invalid as impairing the obligations of
contracts. 5
A judicial declaration of invalidity, it is also true, may not necessarily obliterate all
the effects and consequences of a void act occurring prior to such a declaration.
Thus, in our decisions on the moratorium laws, 6 we have been constrained to
recognize the interim effects of said laws prior to their declaration of
unconstitutionality, but there we have likewise been unable to simply ignore strong
considerations of equity and fair play. So also, even as a practical matter, a situation
that may aptly be described as fait accompli may no longer be open for further
inquiry, let alone to be unsettled by a subsequent declaration of nullity of a
governing statute.
The instant controversy, however, is too far distant away from any of the above
exceptional cases. To this day, the controversy between the petitioner and the
private respondents on the issue of just compensation is still unresolved, partly
attributable to the instant petition that has prevented the finality of the decision
appealed from. The fact of the matter is that the expropriation cases, involved in
this instance, were still pending appeal when the EPZA ruling was rendered and
forthwith invoked by said parties.
In fine, we hold that the appellate court in this particular case committed no error in
its appealed decision.
WHEREFORE, the instant petition is dismissed. No costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
24. SERRANO DE AGBAYANI V. PNB
G.R. No. L-23127 April 29, 1971

FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,
vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF
PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant.
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if any, to be
attached to a statute subsequently adjudged invalid, is decisive of this appeal from
a lower court decision. Plaintiff Francisco Serrano de Agbayani, now appellee, was
able to obtain a favorable judgment in her suit against defendant, now appellant
Philippine National Bank, permanently enjoining the other defendant, the Provincial

Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure sale of land
belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no
longer enforceable, the prescriptive period having lapsed. There was thus a failure
to sustain the defense raised by appellant that if the moratorium under an
Executive Order and later an Act subsequently found unconstitutional were to be
counted in the computation, then the right to foreclose the mortgage was still
subsisting. In arriving at such a conclusion, the lower court manifested a tenacious
adherence to the inflexible view that an unconstitutional act is not a law, creating
no rights and imposing no duties, and thus as inoperative as if it had never been. It
was oblivious to the force of the principle adopted by this Court that while a
statute's repugnancy to the fundamental law deprives it of its character as a
juridical norm, its having been operative prior to its being nullified is a fact that is
not devoid of legal consequences. As will hereafter be explained, such a failing of
the lower court resulted in an erroneous decision. We find for appellant Philippine
National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of
P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered covering property described in
T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the
balance due on said loan was in the amount of P1,294.00. As early as July 13 of the
same year, defendant instituted extra-judicial foreclosure proceedings in the office
of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the
loan remaining unpaid. Plaintiff countered with his suit against both defendants on
August 10, 1959, her main allegation being that the mortgage sought to be
foreclosed had long prescribed, fifteen years having elapsed from the date of
maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary
injunction against defendant Provincial Sheriff, which was made permanent in the
decision now on appeal. Defendant Bank in its answer prayed for the dismissal of
the suit as even on plaintiff's own theory the defense of prescription would not be
available if the period from March 10, 1945, when Executive Order No. 32 1 was
issued, to July 26, 1948, when the subsequent legislative act 2 extending the period
of moratorium was declared invalid, were to be deducted from the computation of
the time during which the bank took no legal steps for the recovery of the loan. As
noted, the lower court did not find such contention persuasive and decided the suit
in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there being
a failure on the part of the lower court to adhere to the applicable constitutional
doctrine as to the effect to be given to a statute subsequently declared invalid.
1. The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise suffering
from that infirmity, cannot be the source of any legal rights or duties. Nor can it
justify any official act taken under it. Its repugnancy to the fundamental law once
judicially declared results in its being to all intents and purposes a mere scrap of

paper. As the new Civil Code puts it: "When the courts declare a law to be
inconsistent with the Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws of the Constitution. 3 It is understandable
why it should be so, the Constitution being supreme and paramount. Any legislative
or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have been in
force and had to be complied with. This is so as until after the judiciary, in an
appropriate case, declares its invalidity, it is entitled to obedience and respect.
Parties may have acted under it and may have changed their positions. What could
be more fitting than that in a subsequent litigation regard be had to what has been
done while such legislative or executive act was in operation and presumed to be
valid in all respects. It is now accepted as a doctrine that prior to its being nullified,
its existence as a fact must be reckoned with. This is merely to reflect awareness
that precisely because the judiciary is the governmental organ which has the final
say on whether or not a legislative or executive measure is valid, a period of time
may have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such
adjudication.
In the language of an American Supreme Court decision: "The actual existence of a
statute, prior to such a determination [of unconstitutionality], is an operative fact
and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the subsequent ruling
as to invalidity may have to be considered in various aspects, with respect to
particular relations, individual and corporate, and particular conduct, private and
official." 4 This language has been quoted with approval in a resolution in Araneta v.
Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even more recent
instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v.
Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power
legislation intended to promote public welfare but adversely affecting property
rights is involved. While subject to be assailed on due process, equal protection and
non-impairment grounds, all that is required to avoid the corrosion of invalidity is
that the rational basis or reasonableness test is satisfied. The legislature on the
whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the
infirmity of out running the bounds of reason and resulting in sheer oppression. It
may be of course that if challenged, an adverse judgment could be the result, as its
running counter to the Constitution could still be shown. In the meanwhile though,
in the normal course of things, it has been acted upon by the public and accepted
as valid. To ignore such a fact would indeed be the fruitful parent of injustice.

Moreover, as its constitutionality is conditioned on its being fair or reasonable,
which in turn is dependent on the actual situation, never static but subject to
change, a measure valid when enacted may subsequently, due to altered
circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the
moratorium legislation, which continued Executive Order No. 32, issued by the then
President Osmea, suspending the enforcement of payment of all debts and other
monetary obligations payable by war sufferers. So it was explicitly held in Rutter v.
Esteban 8where such enactment was considered in 1953 "unreasonable and
oppressive, and should not be prolonged a minute longer, and, therefore, the same
should be declared null and void and without effect." 9 At the time of the issuance of
the above Executive Order in 1945 and of the passage of such Act in 1948, there
was a factual justification for the moratorium. The Philippines was confronted with
an emergency of impressive magnitude at the time of her liberation from the
Japanese military forces in 1945. Business was at a standstill. Her economy lay
prostrate. Measures, radical measures, were then devised to tide her over until
some semblance of normalcy could be restored and an improvement in her
economy noted. No wonder then that the suspension of enforcement of payment of
the obligations then existing was declared first by executive order and then by
legislation. The Supreme Court was right therefore in rejecting the contention that
on its face, the Moratorium Law was unconstitutional, amounting as it did to the
impairment of the obligation of contracts. Considering the circumstances
confronting the legitimate government upon its return to the Philippines, some such
remedial device was needed and badly so. An unyielding insistence then on the
rights to property on the part of the creditors was not likely to meet with judicial
sympathy. Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was its
satisfying the rational basis test, not as of the time of its enactment but as of such
date. Clearly, if then it were found unreasonable, the right to non-impairment of
contractual obligations must prevail over the assertion of community power to
remedy an existing evil. The Supreme Court was convinced that such indeed was
the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose
sight of the fact that these obligations had been pending since 1945 as a result of
the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is
still inhibited because of the enactment of Republic Act No. 342 and would continue
to be unenforceable during the eight-year period granted to prewar debtors to
afford them an opportunity to rehabilitate themselves, which in plain language
means that the creditors would have to observe a vigil of at least twelve (12) years
before they could affect a liquidation of their investment dating as far back as 1941.
This period seems to us unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, the relief accorded works
injustice to creditors who are practically left at the mercy of the debtors. Their hope
to effect collection becomes extremely remote, more so if the credits are unsecured.
And the injustice is more patent when, under the law the debtor is not even
required to pay interest during the operation of the relief, unlike similar statutes in

the United States. 10 The conclusion to which the foregoing considerations inevitably
led was that as of the time of adjudication, it was apparent that Republic Act No.
342 could not survive the test of validity. Executive Order No. 32 should likewise be
nullified. That before the decision they were not constitutionally infirm was admitted
expressly. There is all the more reason then to yield assent to the now prevailing
principle that the existence of a statute or executive order prior to its being
adjudged void is an operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a valid
governmental response to the plight of the debtors who were war sufferers, this
Court has made clear its view in a series of cases impressive in their number and
unanimity that during the eight-year period that Executive Order No. 32 and
Republic Act No. 342 were in force, prescription did not run. So it has been held
from Day
v.
Court
of
First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year.
What is deplorable is that as of the time of the lower court decision on January 27,
1960, at least eight decisions had left no doubt as to the prescriptive period being
tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the
opposite view entertained by the lower court, the present Chief Justice, in Liboro v.
Finance and Mining Investments Corp. 14 has categorized it as having been
"explicitly and consistently rejected by this Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From July
19, 1944, when her loan matured, to July 13, 1959, when extra-judicial foreclosure
proceedings were started by appellant Bank, the time consumed is six days short of
fifteen years. The prescriptive period was tolled however, from March 10, 1945, the
effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter
v. Esteban was promulgated, covering eight years, two months and eight days.
Obviously then, when resort was had extra-judicially to the foreclosure of the
mortgage obligation, there was time to spare before prescription could be availed of
as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff
filed August 10, 1959 dismissed. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.
25. MANILA PRINCE HOTEL V. GSIS

G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos, 1 is in oked by petitioner in its
bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns
the historic Manila Hotel. Opposing, respondents maintain that the provision is not
self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government under
Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding
30% to 51% of the issued and outstanding shares of respondent MHC. The winning
bidder, or the eventual "strategic partner," is to provide management expertise

and/or an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding
held on 18 September 1995 only two (2) bidders participated: petitioner Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the
MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian
firm, with ITT-Sheraton as its hotel operator, which bid for the same number of
shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder
will lose the right to purchase the Block of Shares and GSIS will instead
offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with
the GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
contract specified by the Highest Bidder in its strategic
plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase
and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC
not later than October 23, 1995 (reset to November 3,
1995); and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner
and the execution of the necessary contracts, petitioner in a letter to respondent
GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered
by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . . 5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded
the tender of the matching bid and that the sale of 51% of the MHC may be
hastened by respondent GSIS and consummated with Renong Berhad, petitioner
came to this Court on prohibition and mandamus. On 18 October 1995 the Court
issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it
was referred to it by the First Division. The case was then set for oral arguments
with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J.,
as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the Filipino
nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence
and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony. 6 Petitioner
also argues that since 51% of the shares of the MHC carries with it the ownership of
the business of the hotel which is owned by respondent GSIS, a government-owned
and controlled corporation, the hotel business of respondent GSIS being a part of
the tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly covered by
the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot
be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the
1987 Constitution is merely a statement of principle and policy since it is not a selfexecuting 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 patrimony of the nation. What is more, the mandate of the

Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only
51% of the outstanding shares of the corporation, not the hotel building nor the land
upon which the building stands. Certainly, 51% of the equity of the MHC cannot be
considered part of the national patrimony. Moreover, if the disposition of the shares
of the MHC is really contrary to the Constitution, petitioner should have questioned
it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share, is misplaced. Respondents postulate that the
privilege of submitting a matching bid has not yet arisen since it only takes place if
for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong Berhad could
still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as petitioner has
no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. 10 It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. 11 Under the
doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private purposes is null and
void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in
every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles.
Their provisions command the legislature to enact laws and carry out the purposes
of the framers who merely establish an outline of government providing for the
different departments of the governmental machinery and securing certain

fundamental and inalienable rights of citizens. 12 A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the
legislature for action. 13
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive codes
of laws intended to operate directly upon the people in a manner similar to that of
statutory enactments, and the function of constitutional conventions has evolved
into one more like that of a legislative body. Hence, unless it is expressly provided
that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. 14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing . . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question
as the Chairman of the Committee on Style. If the wording
of "PREFERENCE" is given to QUALIFIED FILIPINOS," can it
be understood as a preference to qualified Filipinos vis-avis Filipinos who are not qualified. So, why do we not
make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over
aliens?

MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or prospective laws will always lay down
conditions under which business may be done. For
example, qualifications on the setting up of other
financial structures, et cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes,
16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting other further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation
to facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule
is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par.,
of Art. XII is implied from the tenor of the first and third paragraphs of the same
section which undoubtedly are not self-executing. 18 The argument is flawed. If the
first and third paragraphs are not self-executing because Congress is still to enact
measures to encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to regulate
and exercise authority over foreign investments within its national jurisdiction, as in
the third paragraph, then a fortiori, by the same logic, the second paragraph can
only be self-executing as it does not by its language require any legislation in order
to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions
are merely statements of principles and policies, which are basically not self-

executing and only placed in the Constitution as moral incentives to legislation, not
as judicially enforceable rights are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nationbuilding 23 the
promotion
of
social
justice, 24 and
the
values
of
25
education. Tolentino v. Secretary of Finance 26 refers to the constitutional
provisions
on
social
justice
and
human
rights 27 and
on
28
29
education. Lastly,Kilosbayan, Inc. v. Morato cites provisions on the promotion of
general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nationbuilding 32 and the promotion of total human liberation and development. 33 A
reading of these provisions indeed clearly shows that they are not judicially
enforceable constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon which the
legislations must be based.Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if there
is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi
jus ibi remedium.
As regards our national
Commission 34 explains
patrimony,
member
of
the
1986
Constitutional
The patrimony of the Nation that should be conserved and developed

refers not only to out rich natural resources but also to the cultural
heritage of out race. It also refers to our intelligence in arts, sciences
and letters. Therefore, we should develop not only our lands, forests,
mines and other natural resources but also the mental ability or faculty
of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not only to
the natural resources of the Philippines, as the Constitution could have very well
used the term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine heritage.
While it was restrictively an American hotel when it first opened in 1912, it
immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930's. It was the site of

the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries
and official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart
and Memory of a City. 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. DAVIDE. I would like to introduce an amendment to
the Nolledo amendment. And the amendment would
consist in substituting the words "QUALIFIED FILIPINOS"
with the following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the
proponent is agreeable, but we have to raise a question.
Suppose it is a corporation that is 80-percent Filipino, do
we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly owned
by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting
it if we say that the preference should only be 100percent Filipino.
MR: DAVIDE. I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to individuals and
not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.
39
xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT
OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And
the word "Filipinos" here, as intended by the proponents,
will include not only individual Filipinos but also Filipinocontrolled entities or entities fully-controlled by
Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request
Commissioner Nolledo to please restate his amendment
so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you,
41
Expounding further on the Filipino First Policy provision Commissioner Nolledo

continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be
"SHALL THE STATE SHALL GlVE PREFERENCE TO QUALIFIED
FILIPINOS. This embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding
the subject provision was still further clarified by Commissioner Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in
all economic concerns. It is better known as the FILIPINO FIRST
Policy . . . This provision was never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be
given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment
to Filipino citizens or organizations that are incompetent or inefficient,
since such an indiscriminate preference would be counter productive
and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference
here is that petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in another
hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that
the subject provision is not self-executory and requires implementing legislation is
quite disturbing. The attempt to violate a clear constitutional provision by the
government itself is only too distressing. To adopt such a line of reasoning is to
renounce the duty to ensure faithfulness to the Constitution. For, even some of the

provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact
further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt
The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts provided that
there are discoverable legal standards for executive action. When the
executive acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to
ask Congress, or perhaps the Court, for an interpretation every time
the executive is confronted by a constitutional command. That is not
how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
personality. This argument again is at best specious. It is undisputed that the sale of
51% of the MHC could only be carried out with the prior approval of the State acting
through respondent Committee on Privatization. As correctly pointed out by Fr.
Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents
GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public function;" (2) when the
government is so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government has approved
or authorized the action. It is evident that the act of respondent GSIS in selling 51%
of its share in respondent MHC comes under the second and third categories of
"state action." Without doubt therefore the transaction. although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also
to the government as elements of the State. After all, government is composed of
three (3) divisions of power legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the
State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet
the winning bidder. The bidding rules expressly provide that the highest bidder shall
only be declared the winning bidder after it has negotiated and executed the
necessary contracts, and secured the requisite approvals. Since the "Filipino First
Policy provision of the Constitution bestows preference on qualified Filipinos the
mere tending of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to make the

award yet, nor are they under obligation to enter into one with the highest bidder.
For in choosing the awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts
must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood to
be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person therefore
desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the
sale to Renong Berhad since petitioner was well aware from the beginning that a
foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and
foreigners alike were invited to the bidding. But foreigners may be awarded the sale
only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid
tendered by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional mandate,
petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent

disregard by respondent GSIS of petitioner's matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as the ultimate guardian
of the Constitution will never shun, under any reasonable circumstance, the duty of
upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages
and welcomes more business opportunities but avowedly sanctions the preference
for Filipinos whenever such preference is ordained by the Constitution. The position
of the Court on this matter could have not been more appropriately articulated by
Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive
about the wisdom and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for decisions perceived
as obstacles to economic progress and development . . . in connection
with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that injunction
"again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself
up as the judge of whether they are viable or attainable, it is its
bounden duty to make sure that they do not violate the Constitution or
the laws, or are not adopted or implemented with grave abuse of

discretion amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-informed
criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national pride and dignity. For the
Constitution enshrines higher and nobler non-material values. Indeed, the Court will
always defer to the Constitution in the proper governance of a free society; after all,
there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic
and republican state, with sovereignty residing in the Filipino people and from whom
all government authority emanates. In nationalism, the happiness and welfare of
the people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic concept.
Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to
be sold to the highest bidder solely for the sake of privatization. We are not talking
about an ordinary piece of property in a commercial district. We are talking about a
historic relic that has hosted many of the most important events in the short history
of the Philippines as a nation. We are talking about a hotel where heads of states
would prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it has
become truly a reflection of the Filipino soul a place with a history of grandeur; a
most historical setting that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark this Grand Old Dame of hotels in Asia
to a total stranger. For, indeed, the conveyance of this epic exponent of the
Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nation's soul for some pieces of
foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it
stands for is sold to a non-Filipino? How much of national pride will vanish if the
nation's cultural heritage is entrusted to a foreign entity? On the other hand, how
much dignity will be preserved and realized if the national patrimony is safekept in
the hands of a qualified, zealous and well-meaning Filipino? This is the plain and
simple meaning of the Filipino First Policy provision of the Philippine Constitution.
And this Court, heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and protect the
sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00
per share and thereafter to execute the necessary clearances and to do such other
acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
26. TANADA V. COMELEC

[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TANADA and ANNA DOMINIQUE COSETENG, as members of
the Philippine Senate and as taxpayers; GREGORIO ANDOLANA and
JOKER ARROYO as members of the House of Representatives and as
taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as
taxpayers;
CIVIL
LIBERTIES
UNION,
NATIONAL
ECONOMIC
PROTECTIONISM
ASSOCIATION,
CENTER
FOR
ALTERNATIVE
DEVELOPMENT
INITIATIVES,
LIKAS-KAYANG
KAUNLARAN
FOUNDATION,
INC.,
PHILIPPINE
RURAL
RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG
PILIPINAS,
INC.,
and
PHILIPPINE
PEASANT
INSTITUTE,
in
representation of various taxpayers and as non-governmental
organizations, petitioners,
vs. EDGARDO
ANGARA,
ALBERTO
ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO
AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA,
JOSE LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS
OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL
ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred in the
ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in
his capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture;
ROBERTO DE OCAMPO, in his capacity as Secretary of Finance;
ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs;
and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary,respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by
the membership thereto of the vast majority of countries has revolutionized
international business and economic relations amongst states. It has irreversibly
propelled
the
world
towards
trade
liberalization
and
economic
globalization. Liberalization, globalization, deregulation and privatization, the thirdmillennium buzz words, are ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore traditional modes of
promoting and protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls. Finding
market niches and becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old beggar-thy-neighbor policies

that unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic
economic growth and prosperity.
Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second
World War, plans for the establishment of three multilateral institutions -- inspired
by that grand political body, the United Nations -- were discussed at Dumbarton
Oaks and Bretton Woods. The first was the World Bank (WB) which was to address
the rehabilitation and reconstruction of war-ravaged and later developing countries;
the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize unilateral protectionist
policies that invite challenge, even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering
the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave
birth to that administering body -- the World Trade Organization -- with the signing
of the Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by
its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to
the Senate (infra), of improving Philippine access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products. The Presidentalso saw in the WTO the opening
of new opportunities for the services sector x x x, (the reduction of) costs and
uncertainty associated with exporting x x x, and (the attraction of) more
investments into the country. Although the Chief Executive did not expressly
mention it in his letter, the Philippines - - and this is of special interest to the legal
profession - - will benefit from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were
settled mainly through negotiations where solutions were arrived at frequently on
the basis of relative bargaining strengths, and where naturally, weak and
underdeveloped countries were at a disadvantage.
The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products
and (2) that the WTO intrudes, limits and/or impairs the constitutional powers of
both Congress and the Supreme Court, the instant petition before this Court assails
the WTO Agreement for violating the mandate of the 1987 Constitution to develop a
self-reliant and independent national economy effectively controlled by Filipinos x x
x (to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation
in worldwide trade liberalization and economic globalization? Does it prescribe
Philippine integration into a global economy that is liberalized, deregulated and
privatized? These are the main questions raised in this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate
in the ratification by the President of the Philippines of the Agreement Establishing
the World Trade Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the release and
utilization of public funds, the assignment of public officials and employees, as well
as the use of government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing
the Government of the Republic of the Philippines, signed in Marrakesh, Morocco,
the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act, [2] Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement
in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter
dated August 11, 1994 from the President of the Philippines, [3] stating among others
that the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another
letter from the President of the Philippines [4] likewise dated August 11, 1994, which
stated among others that the Uruguay Round Final Act, the Agreement Establishing
the World Trade Organization, the Ministerial Declarations and Decisions, and the

Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of
the immediate adoption of P.S. 1083, a resolution entitled Concurring in the
Ratification of the Agreement Establishing the World Trade Organization. [5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in
the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization.[6] The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade
Negotiations and includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively
referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on
Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed [7] the Instrument
of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of
the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only
the WTO Agreement (and its integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the Understanding on Commitments
in Financial Services. In his Memorandum dated May 13, 1996, [8] the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and
decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing nonconforming measures, market access, national treatment, and definitions of nonresident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation
on respondents comment and petitioners reply thereto, the Court resolved on
December 12, 1995, to give due course to the petition, and the parties thereafter
filed their respective memoranda. The Court also requested the Honorable Lilia R.

Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as Bautista Paper, [9] for brevity,
(1) providing a historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the
case submitted for resolution. In a Compliance dated September 16, 1996, the
Solicitor General submitted a printed copy of the 36-volume Uruguay Round of
Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996,
he listed the various bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty. Petitioners, on the other hand,
submitted their Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues
as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10
and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for

concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized
the several issues raised by petitioners into the following: [10]
1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article II
and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President
of the Philippines of the Agreement establishing the World Trade Organization
implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1) whether
the petition presents a political question or is otherwise not justiciable; (2) whether
petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3) whether the respondentmembers of the Senate acted in grave abuse of discretion when they voted for
concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this
case -- was deliberated upon by the Court and will thus be ruled upon as the first
issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their
pleadings; in any event, this issue, even if ruled in respondents favor, will not cause
the petitions dismissal as there are petitioners other than the two senators, who are
not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues
raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did
not question the locus standi of petitioners. Hence, they are also deemed to have
waived the benefit of such issue. They probably realized that grave constitutional
issues, expenditures of public funds and serious international commitments of the
nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or
deflected by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1)
DOES
THE
PETITION
PRESENT
A
JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII,
OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID
NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND
DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld.[12] Once a controversy as to the application or interpretation
of a constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to
decide.[13]
The jurisdiction of this Court to adjudicate the matters [14] raised in the petition is
clearly set out in the 1987 Constitution,[15] as follows:

Judicial power includes the duty of the 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 of any branch or instrumentality of the
government.
The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress.It is an innovation in our political law. [16] As
explained by former Chief Justice Roberto Concepcion, [17] the judiciary is the final
arbiter on the question of 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. This is
not only a judicial power but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, [18] it will not
shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department
of the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at
all in holding that this petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the Senate in
enlisting the country into the WTO, or pass upon the merits of trade liberalization as
a policy espoused by said international body. Neither will it rule on the propriety of
the governments economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise
its constitutional duty to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions and Declarations
and in the Understanding on Commitments in Financial Services.

Specifically, the flagship constitutional provisions referred to are Sec. 19, Article
II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. 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.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by
the following WTO provisions quoted in their memorandum: [19]
a) In the area of investment measures related to trade in goods (TRIMS,
for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no
Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided for in paragraph I

of Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to
obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular
products, in terms of volume or value of products, or in terms of
proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to
an amount related to the volume or value of local products that it
exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the
local production that it exports;
(b) the importation by an enterprise of products used in or related to its
local production by restricting its access to foreign exchange inflows
attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular
products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of
any other contracting party shall be accorded treatment no less favorable
than that accorded to like products of national origin in respect of laws,

regulations and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. the provisions of this paragraph shall
not prevent the application of differential internal transportation charges which are
based exclusively on the economic operation of the means of transport and not on
the nationality of the product. (Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in
relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol.
1, Uruguay Round, Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights
(TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no
less favourable than that it accords to its own nationals with regard to the
protection of intellectual property... (par. 1, Article 3, Agreement on Trade-Related
Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments,
p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords
to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to
be less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity
provisions of the WTO Agreement place nationals and products of member countries
on the same footing as Filipinos and local products, in contravention of the Filipino
First policy of the Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict becomes more manifest
when viewed in the context of the clear duty imposed on the Philippines as a WTO
member to ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed agreements.
[20]
Petitioners further argue that these provisions contravene constitutional

limitations on the role exports play in national development and negate the
preferential treatment accorded to Filipino labor, domestic materials and locally
produced goods.
On the other hand, respondents through the Solicitor General counter (1) that
such Charter provisions are not self-executing and merely set out general policies;
(2) that these nationalistic portions of the Constitution invoked by petitioners should
not be read in isolation but should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do
not conflict with the Constitution; and (4) that the WTO Agreement contains
sufficient provisions to protect developing countries like the Philippines from the
harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles and
state policies. The counterpart of this article in the 1935 Constitution [21] is called the
basic political creed of the nation by Dean Vicente Sinco.[22] These principles in
Article II are not intended to be self-executing principles ready for enforcement
through the courts.[23] They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of
laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato,[24] the
principles and state policies enumerated in Article II and some sections of Article XII
are not self-executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional rights
but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional
principles need legislative enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the
legislature failed to heed the directives of the article, the available remedy was not
judicial but political. The electorate could express their displeasure with the failure
of the executive and the legislature through the language of the ballot. (Bernas, Vol.
II, p. 2).
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process and

the lack of judicial authority to wade into the uncharted ocean of social and
economic policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion
in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that
the trial court can validly render judgment granting all or part of the relief prayed
for. To my mind, the court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should have given petitioners
an effective opportunity so to demonstrate, instead of aborting the proceedings on
a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the 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 of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy
ecology and the right to health are combined with remedial standards as broad
ranging as a grave abuse of discretion amounting to lack or excess of jurisdiction,
the result will be, it is respectfully submitted, to propel courts into the uncharted
ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making
departments -- the legislative and executive departments -- must be given a real
and effective opportunity to fashion and promulgate those norms and standards,
and to implement them before the courts should intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates
to Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read
and understood in relation to the other sections in said article, especially Secs. 1
and 13 thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the
country shall be given optimum opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of
national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the
nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and
patrimony[27] and in the use of Filipino labor, domestic materials and locallyproduced goods; (2) by mandating the State to adopt measures that help make
them competitive;[28] and (3) by requiring the State to develop a self-reliant and
independent national economy effectively controlled by Filipinos. [29] In similar
language, the Constitution takes into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity; [30] and
speaks of industries which are competitive in both domestic and foreign markets as

well as of the protection of Filipino enterprises against unfair foreign competition
and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al.,[31] this Court held that Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable. However, as the constitutional
provision itself states, it is enforceable only in regard to the grants of rights,
privileges and concessions covering national economy and patrimony and not to
every aspect of trade and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is selfexecuting or not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. [32] In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign
goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some builtin advantages to protect weak and developing economies, which comprise the vast
majority of its members.Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each members vote equal in weight to that of any
other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the
Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals.[33]
Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed

countries. Within the WTO, developing countries can form powerful blocs to push
their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in law. Thus,
the basic principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to share in the growth in international
trade commensurate with the needs of their economic development. These basic
principles are found in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment
and a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to
enhance the means for doing so in a manner consistent with their respective needs
and concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay
Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and
the period within which the reduction is to be spread out. Specifically, GATT requires
an average tariff reduction rate of 36% for developed countries to be effected within
aperiod of six (6) years while developing countries -- including the Philippines -are required to effect an average tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the
WTO, local industries and enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the weaker situations of
developing nations like the Philippines have been taken into account; thus, there
would be no basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to steer the ship of
state into the yet uncharted sea of economic liberalization. But such decision cannot
be set aside on the ground of grave abuse of discretion, simply because we
disagree with it or simply because we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as an economic policy. It will
only perform its constitutional duty of determining whether the Senate committed
grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent national
economy[35] does not necessarily rule out the entry of foreign investments, goods
and services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence refers to the freedom
from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities. [36]
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a
trade policy based on equality and reciprocity, [37] the fundamental law encourages
industries that are competitive in both domestic and foreign markets, thereby

demonstrating a clear policy against a sheltered domestic trade environment, but
one in favor of the gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises
have shown capability and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow and to prosper against the best
offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that Filipino
companies
should
be
pampered
with
a
total
proscription of foreign competition. On the other hand, respondents claim
that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will
-- as promised by its promoters -- expand the countrys exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers,
for which they are answerable to our people during appropriate electoral
exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution
was drafted and ratified in 1987. That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not have anticipated the
advent of a borderless world of business. By the same token, the United Nations
was not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have contemplated a
diminution of the absoluteness of sovereignty when the Philippines signed the UN
Charter, thereby effectively surrendering part of its control over its foreign relations
to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not
only the vagaries of contemporary events. They should be interpreted to cover even

future and unknown circumstances. It is to the credit of its drafters that a
Constitution can withstand the assaults of bigots and infidels but at the same time
bend with the refreshing winds of change necessitated by unfolding events. As one
eminent political law writer and respected jurist [38] explains:
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march
apace with the progress of the race, drawing from the vicissitudes of history the
dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing,
living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity
of its laws, regulations and administrative procedures with its obligations as
provided in the annexed Agreements. [39] Petitioners maintain that this undertaking
unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative
power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in
the Congress of the Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such legislation will not conform
with the WTO Agreement, which not only relates to the trade in goods x x x but also
to the flow of investments and money x x x as well as to a whole slew of
agreements on socio-cultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the
power to tax, which is lodged in the Congress. [41] And while the Constitution allows
Congress to authorize the President to fix tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts, such authority is subject
to specified limits and x x x such limitations and restrictions as Congress may
provide,[42] as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of
the world. In its Declaration of Principles and State Policies, the Constitution adopts

the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity, with all nations."[43] By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are considered to be
automatically part of our own laws. [44] One of the oldest and most fundamental rules
in international law is pacta sunt servanda -- international agreements must be
performed in good faith. A treaty engagement is not a mere moral obligation but
creates a legally binding obligation on the parties x x x. A state which has
contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations
undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly agree
to limit the exercise of their otherwise absolute rights. Thus, treaties have been
used to record agreements between States concerning such widely diverse matters
as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of international
organizations.[46] The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, Today,
no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the concept of
sovereignty as auto-limitation.47-AUnder Article 2 of the UN Charter, (a)ll members
shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action. Such
assistance includes payment of its corresponding share not merely in administrative
expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were expenses of the United Nations under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within

their own territory. Another example: although sovereign equality and domestic
jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article 103, (i)n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their
obligation under the present charter shall prevail, thus unquestionably denying the
Philippines -- as a member -- the sovereign power to make a choice as to which of
conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral and multilateral -- that involve limitations on
Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income,
where the Philippines agreed, among others, to exempt from tax, income
received in the Philippines by, among others, the Federal Reserve Bank of
the United States, the Export/Import Bank of the United States, the
Overseas Private Investment Corporation of the United States. Likewise, in
said convention, wages, salaries and similar remunerations paid by the
United States to its citizens for labor and personal services performed by
them as employees or officials of the United States are exempt from income
tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding
59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed
that premises of Special Missions in the Philippines are inviolable and its
agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes
and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police power. The
underlying consideration in this partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to
durable, well-defined substantive norms and objective dispute resolution procedures
reduce the risks of larger countries exploiting raw economic power to bully smaller
countries, by subjecting power relations to some form of legal ordering. In addition,
smaller countries typically stand to gain disproportionately from trade
liberalization. This is due to the simple fact that liberalization will provide access to
a larger set of potential new trading relationship than in case of the larger country
gaining enhanced success to the smaller countrys market. [48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty
may be waived without violating the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of international law as part of

the law of the land and adheres to the policy of x x x cooperation and amity with all
nations.
Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS)[49] intrudes on the power of the Supreme Court to promulgate rules
concerning pleading, practice and procedures. [50]
To understand the scope and meaning of Article 34, TRIPS, [51] it will be fruitful to
restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28, if the subject
matter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process. Therefore,
Members shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by
the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall be
taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note
the words in the absence of proof to the contrary) presumption that a product
shown to be identical to one produced with the use of a patented process shall be
deemed to have been obtained by the (illegal) use of the said patented process, (1)
where such product obtained by the patented product is new, or (2) where there is
substantial likelihood that the identical product was made with the use of the said

patented process but the owner of the patent could not determine the exact process
used in obtaining such identical product. Hence, the burden of proof contemplated
by Article 34 should actually be understood as the duty of the alleged patent
infringer to overthrow such presumption. Such burden, properly understood,
actually refers to the burden of evidence (burden of going forward) placed on the
producer of the identical (or fake) product to show that his product was produced
without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof
since, regardless of the presumption provided under paragraph 1 of Article 34, such
owner still has to introduce evidence of the existence of the alleged identical
product, the fact that it is identical to the genuine one produced by the patented
process and the fact of newness of the genuine product or the fact of substantial
likelihood that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as amended,
otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility
model shall consist in unauthorized copying of the patented design or utility model
for the purpose of trade or industry in the article or product and in the making,
using or selling of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process is NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of
implementing the provisions of TRIPS within their own internal systems and
processes.
By and large, the arguments adduced in connection with our disposition of the
third issue -- derogation of legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if
any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute
settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of
procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is
flawed because it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of the President to
the Senate[53] which enumerated what constitutes the Final Act should have been
the subject of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties, conventions, recommendations and
other acts agreed upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a summary of the proceedings of
a protracted conference which may have taken place over several years. The text of
the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations is contained in just one page [55] in Vol. I of the 36volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act,
Secretary Navarro as representative of the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what
the Final Act required from its signatories, namely, concurrence of the Senate in the
WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need
for ratification. They were approved by the ministers by virtue of Article XXV: 1 of
GATT which provides that representatives of the members can meet to give effect to
those provisions of this Agreement which invoke joint action, and generally with a
view to facilitating the operation and furthering the objectives of this Agreement. [56]
The Understanding on Commitments in Financial Services also approved in
Marrakesh does not apply to the Philippines. It applies only to those 27 Members
which have indicated in their respective schedules of commitments on standstill,
elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information,
and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business. [57]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, [58] as follows:
Article II

Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and
associated legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2,
and 3 (hereinafter referred to as Multilateral Agreements) are integral parts of
this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on
those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final
Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred to as GATT
1947).
It should be added that the Senate was well-aware of what it was concurring in
as shown by the members deliberation on August 25, 1994. After reading the letter
of President Ramos dated August 11, 1994, [59] the senators of the Republic minutely
dissected what the Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in
the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until
the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he
making a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with
the provisions of the Constitution, and with the Final Act itself. The Constitution does
not require us to ratify the Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what is going to be submitted to
with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with
their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorarigrounded on
grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of
Court when it is amply shown that petitioners have no other plain, speedy and
adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. [61] Mere abuse of discretion is not
enough. It must be graveabuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.
[62]
Failure on the part of the petitioner to show grave abuse of discretion will result
in the dismissal of the petition.[63]
In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to
great respect in its actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senates processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senates exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles require
the State to develop an independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials
and locally produced goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in themselves sources of causes
of action. Moreover, there are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a trade policy that serves
the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity and the promotion of industries which are
competitive in both domestic and foreign markets, thereby justifying its acceptance

of said treaty. So too, the alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the adherence of
the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly
gave its consent to the WTO Agreement thereby making it a part of the law of the
land is a legitimate exercise of its sovereign duty and power. We find no patent and
gross arbitrariness or despotism by reason of passion or personal hostility in such
exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial
power and duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is outside the
realm of judicial inquiry and review. That is a matter between the elected policy
makers and the people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter that our people
should determine in electing their policy makers. After all, the WTO Agreement
allows withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts
an Asian Renaissance[65] where the East will become the dominant region of the
world economically, politically and culturally in the next century. He refers to the
free market espoused by WTO as the catalyst in this coming Asian
ascendancy. There are at present about 31 countries including China, Russia and
Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only
viable structure for multilateral trading and the veritable forum for the development
of international trade law. The alternative to WTO is isolation, stagnation, if not
economic self-destruction. Duly enrichedwith original membership, keenly aware of
the advantages and disadvantages of globalization with its on-line experience, and
endowed with a vision of the future, the Philippines now straddles the crossroads of
an international strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected officers, make
their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.

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