II. Adoption and Amendment of The Constitution - Full Cases

Constitutional Law 1 Dante Gatmaitan 2011
II. The Constitution and Its Interpretation Adoption and Amendment of the Constitution 1. 2. 3. 4. 5. 6. 7. Santiago v. COMELEC, GR No. 127325, March 19, 1997 PIRMA v. COMELEC, September 23, 1997 Gonzales v. COMELEC, GR No. 21 SCRA 74 (1967) Tolentino v. COMELEC, 41 SCRA 702 (1973) Javellana v. Executive Secretary, 50 SCRA 30 (1973) Planas v. COMELEC, 49 SCRA 105 (1973) Lambino v. COMELEC, GR No. 174153, October 25, 2006
========================================================================================= GR No: Date: SC: En Banc
Petitioner Appellant: Respondent Appellee: FACTS:
SUIT:
ISSUES:
DECISION: Decidendi (ratio)
Disponendi (wherefore)
DISSENT:
SEPARATE OPINION:
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G.R. No. 127325 March 19, 1997 MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents. SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.: The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention. 4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition. On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order 1. Fixing the time and dates for signature gathering all over the country; 2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation; 3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose. Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose
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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 96-037 (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
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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.
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On 2 January 1997, private respondents, through Atty Quadra, filed their Comment They argue therein that:
15
on the petition.
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
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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.
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(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
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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
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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
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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. I 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
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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, Commission, stated:
29
Joaquin Bernas, a member of the 1986 Constitutional
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.
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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 ?
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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?
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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
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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.
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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
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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. 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 this right.
45 40
shall by law provide for the implementation of the exercise of
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with The Congress shall provide for the implementation of the exercise of this right. This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735. But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?" A careful scrutiny of the Act yields a negative answer. First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads: Sec. 2. Statement and Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied). The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part."
52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5
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(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. Definition of terms
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xxx 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.
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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. 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 55
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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.
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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
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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:
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I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:
6
xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 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.
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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.
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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 90day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. 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.
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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: xxx xxx xxx 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
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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. Consolidation of the Senate and House Bill No. so and so. 10 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 xxx xxx xxx 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. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. 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.
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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. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. 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. And provincial as well as municipal resolutions? MR. ROCO. 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. For every five years, Mr. Speaker? MR. ROCO. 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. And the two bills were consolidated? MR. ROCO. 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)
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THE SPEAKER PRO TEMPORE. 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 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) 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
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the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of 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
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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. 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. 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?
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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: xxx 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 2020 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
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It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of
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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. 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. 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
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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 wellwritten ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. 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:
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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: MR. ROCO. On the Conference Committee Report on the disagreeing provisions 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. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
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MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman 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 provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. 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. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the 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
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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: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.
PANGANIBAN, J., concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned."
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(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. 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. 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
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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. Melo and Mendoza, JJ., concur.
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Separate Opinions PUNO, J., concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:
6
xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 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.
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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
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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 90day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ESCUDERO
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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: xxx xxx xxx 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,
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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. Consolidation of the Senate and House Bill No. so and so. 10 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 xxx xxx xxx 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. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
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MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. 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. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. 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. And provincial as well as municipal resolutions? MR. ROCO. 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. For every five years, Mr. Speaker? MR. ROCO. 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.
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MR. ALBANO. And the two bills were consolidated? MR. ROCO. 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) THE SPEAKER PRO TEMPORE. 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 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) 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.
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Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of 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
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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. 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.
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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. 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. 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: xxx 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 2020 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
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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 decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right.
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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. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of
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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. 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 wellwritten ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. 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
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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: MR. ROCO. On the Conference Committee Report on the disagreeing provisions 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.
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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. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman 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 provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. 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. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done
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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: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.
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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. 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. 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
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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
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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. Melo and Mendoza, JJ., concur. Footnotes 1 Commissioner Blas Ople. 2 Commissioner Jose Suarez. 3 I Record of the Constitutional Commission, 371, 378. 4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973 Constitution. 5 Annex "A" of Petition, Rollo, 15. 6 Later identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity. 7 These sections read: Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 8 The section reads:
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Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length or time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. 9 The section reads: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 10 Rollo, 19. 11 Annex "B" of Petition, Rollo, 25. 12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27. 13 Id. 14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976]. 15 Rollo, 68. 16 Rollo, 100. 17 Rollo, 130. 18 A Member of the 1986 Constitutional Commission. 19 Section 26, Article II, Constitution. 20 Citing Commissioner Ople of the Constitutional Commission, I Record of the Constitutional Commission, 405. 21 Rollo, 239. 22 Rollo, 304.
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23 Rollo, 568. 24 These were submitted on the following dates: (a) Private respondent Delfin 31 January 1997 (Rollo, 429); (b) Private respondents Alberto and Carmen Pedrosa 10 February 1997 (Id., 446); (c) Petitioners 12 February 1997 (Id., 585); (d) IBP 12 February 1997 (Id., 476); (e) Senator Roco 12 February 1997 (Id., 606); (f) DIK and MABINI 12 February 1997 (Id., 465); (g) COMELEC 12 February 1997 (Id., 489); (h) LABAN 13 February 1997 (Id., 553). 25 Rollo, 594. 26 Annex "D" of Roco's Motion for Intervention in this case, Rollo, 184. 27 Rollo, 28. 28 232 SCRA 110, 134 [1994]. 29 II The Constitution of the Republic of the Philippines, A Commentary 571 [1988]. 30 I Record of the Constitutional Commission 370-371. 31 Id., 371. 32 Id., 386. 33 Id., 391-392. (Emphasis supplied). 34 Id., 386. 35 Id., 392. 36 Id., 398-399. 37 Id., 399. Emphasis supplied.
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38 Id., 402-403. 39 Id., 401-402. 40 Id., 410. 41 Id., 412. 42 II Record of the Constitutional Commission 559-560. 43 The Congress originally appeared as The National Assembly. The change came about as a logical consequence of the amended Committee Report No. 22 of the Committee on Legislative which changed The National Assembly to "The Congress of the Philippines" in view of the approval of the amendment to adopt the bicameral system (II Record of the Constitutional Commission 102-105). The proposed new Article on the Legislative Department was, after various amendments approved on Second and Third Readings on 9 October 1986 ( Id., 702-703) 44 V Record of the Constitutional Commission 806. 45 See footnote No. 42. 46 As Stated by Commissioner Bernas in his interpellation of Commissioner Suarez, footnote 28. 47 Entitled "Initiative and Referendum Act of 1987," introduced by then Congressmen Raul Roco, Raul del Mar and Narciso Monfort. 48 Entitled "An Act Implementing the Constitutional Provisions on Initiative and Referendum and for Other Purposes," introduced by Congressmen Salvador Escudero. 49 Entitled "An Act Providing for a System of Initiative and Referendum, and the Exceptions 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," introduced by Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr. 50 IV Record of the Senate, No. 143, pp. 1509-1510. 51 VIII Journal and Record of the House of Representatives, 957-961. 52 That section reads: Sec. 1. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose and enact resolutions and ordinances or approve or reject, in whole or in part, any ordinance or resolution passed by any local legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
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53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third Reading, did not contain any subtitles. 54 If some confusion attended the preparation of the subtitles resulting in the leaving out of the more important and paramount system of initiative on amendments to the Constitution, it was because there was in the Bicameral Conference Committee an initial agreement for the Senate panel to draft that portion on local initiative and for the House of Representatives panel to draft that portion covering national initiative and initiative on the Constitution; eventually, however, the Members thereof agreed to leave the drafting of the consolidated bill to their staff. Thus: CHAIRMAN GONZALES. . . . All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let us not discuss anymore kung alin ang 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 pag-usapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. Pero gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral Conference Committee on 6 June 1989 submitted by Nora, R, pp. 1-4 1-5). xxx xxx xxx HON. ROCO. So how do we proceed from this? The staff will consolidate. HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang magconsult sa aming mga members na kung okay, HON. ROCO. Within today? HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh. HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you are not objecting naman kayo naman ganoon din. HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June 1989, submitted by E.S. Bongon, pp. III-4 III-5). 55 Sec. 5(a & c), Sec. 8, Section 9(a). 56 Sections 13, 14, 15 and 16. 57 It would thus appear that the Senate's "cautious approach" in the implementation of the system of initiative as a mode of proposing amendments
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to the Constitution, as expressed by Senator Gonzales in the course of his sponsorship of Senate Bill No. 17 in the Bicameral Conference Committee meeting and in his sponsorship of the Committee's Report, might have insidiously haunted the preparation of the consolidated version of Senate Bill No. 17 and House Bill No. 21505. In the first he said: Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our political system. And recognizing that, it has adopted a cautious approach by: first, allowing them only when the local legislative body had refused to act; second, not more frequently than once a year; and, third, limiting them to the national level. (I Record of the Senate, No. 33, p. 871). xxx xxx xxx First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a novel and new system in politics. We have to adopt first a cautious approach. We feel it is prudent and wise at this point in time, to limit those powers that may be the subject of initiatives and referendum to those exercisable or within the authority of the local government units. (Id., p. 880). In the second he stated: 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 general units. (TSN of the proceedings of the Bicameral Conference Committee on 6 June 1989, submitted by stenographer Nora R, pp. 1-2 to 1-3). In the last he declared: The initiatives and referendum are new tools of democracy; therefore, we have decided to be cautious in our approach. Hence, 1) we limited initiative and referendum to the local government units; 2) that initiative can only be exercised if the local legislative cannot be exercised more frequently that once every year. (IV Records of the Senate, No. 143, pp. 15-9-1510). 58 Section 20, RA. No. 6735. 59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86 [1996] (hereafter CRUZ). 60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87. 61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965]. 62 Edu v. Ericta, 35 SCRA 481,497 [1970]. 63 Sec. 7, COMELEC Resolution No. 2300.
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64 Sec. 28, id. 65 Sec. 29, id. 66 Sec. 30, id. PUNO, J., concurring and dissenting:: 1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US v. Tamparong 31 Phil. 321; Hernani v. Export Control Committee, 100 Phil. 973; People v. Purisima, 86 SCRA 542. 2 Ibid, citing Torres v. Limjap, 56 Phil. 141. 3 Prepared and sponsored by the House Committee on Suffrage and Electoral Reforms on the basis of H.B. No. 497 introduced by Congressmen Raul Roco, Raul del Mar and Narciso Monfort and H.B. No. 988 introduced by Congressman Salvador Escudero. 4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Pimentel, Jr., and Jose Lina, Jr. 5 It was entitled "An Act Providing a System of Initiative and Referendum and Appropriating Funds therefor. 6 Journal No. 85, February 14, 1989, p. 121. 7 Ibid. 8 The Senate Committee was chaired by Senator Neptali Gonzales with Senators Agapito Aquino and John Osmena as members. The House Committee was chaired by Congressman Magdaleno M. Palacol with Congressmen Raul Roco, Salvador H. Escudero III and Joaquin Chipeco, Jr., as members. 9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro Manila. 10 See Compliance submitted by intervenor Roco dated January 28, 1997. 11 Record No. 137, June 8, 1989, pp. 960-961. 12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Navarro, 19 Phil 134 (1911). 13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Crawford, Statutory Construction, pp. 337-338.
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14 Black, Handbook on the Construction and Interpretation of the Laws (2nd ed), pp. 258-259. See also Commissioner of Custom v. Relunia, 105 Phil 875 (1959); People v. Yabut, 58 Phil 499 (1933). 15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237. 16 Entitled In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws and promulgated on January 16, 1991 by the COMELEC with Commissioner Haydee B. Yorac as Acting Chairperson and Commissioners Alfredo E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. 17 15 SCRA 569. 18 Sec. 5(b), R.A. No. 6735. 19 Sec. 5(b), R.A. No. 6735. 20 Sec. 7, R.A. No. 6735. 21 Sec. 9(b), R.A. No. 6735. 22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constitution. 23 Sec. 9(b), R.A. No. 6735. 24 Sec. 10, R.A. No. 6735. 25 Cruz, Philippine Political Law, 1995 ed., p. 98. 26 See July 8, 1986 Debates of the Concom, p. 399. 27 1995 ed., p. 1207. 28 Cruz, op cit., p. 99. 29 320 US 99. 30 Balbuena v. Secretary of Education, 110 Phil 150 (1910). 31 People v. Rosenthal, 68 Phil 328 (1939). 32 Calalang v. Williams, 70 Phil 726 (1940). 33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919). 34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940).
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35 Phil. Association of Colleges and Universities v. Secretary of Education, 97 Phil 806 (1955). 36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979). 37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (1976). 38 Maceda v. Macaraig, 197 SCRA 771 (1991). 39 Osmena v. Orbos, 220 SCRA 703 (1993). 40 Chiongbian v. Orbos, 245 SCRA 253 (1995). 41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993. 42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994. 43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416, September 26, 1996. 44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997. FRANCISCO, J., concurring and dissenting: 1 Article II, Section 1, 1987 Constitution. 2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution. 3 Petition, p. 5. 4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996. 5 Tamayo v. Gsell, 35 Phil. 953, 980. 6 Section 3 (a), Republic Act No 6735. 7 Section 3(a) [a.1], Republic Act No 6735. 8 Uytengsu v. Republic, 95 Phil. 890, 893 9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16. PANGANIBAN, J., concurring and dissenting: 1 Apart from its text on "national initiative" which could be used by analogy, RA 6735 contains sufficient provisions covering initiative on the Constitution, which are clear enough and speak for themselves, like:
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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 resolution passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. Sec. 3. Definition of Terms. For purposes of this Act, the following terms shall mean: (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislation's through an election called for the purpose. 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. xxx xxx xxx (e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved or rejected by the people (f) "Petition" is the written instrument containing the proposition and the required number of signatories. It shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred to as the Commission xxx xxx xxx Sec. 5 Requirements. . . . (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. Sec. 9. Effectivity of Initiative or Referendum Proposition.
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xxx xxx xxx (b) 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. xxx xxx xxx (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 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. xxx xxx xxx Sec. 19. Applicability of the Omnibus Election Code. The Omnibus Election Code and other election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and referenda. Sec. 20. Rules and Regulations. The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act. (Emphasis supplied) 2 G.R. No. 125416, September 26, 1996. 3 237 SCRA 279, 282, September 30, 1994. 4 Sec. 20, R.A. 6735. 5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929). =================================================================================
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GR No: Date: SC: En Banc
SUIT:
ISSUES:
DISSENT:
SEPARATE OPINION:
PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 174153 October 25, 2006 RAUL L. LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS
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Republic of the Philippines SUPREME COURT Manila 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, Respondent. x--------------------------------------------------------x ALTERNATIVE LAW GROUPS, INC., Intervenor. x ------------------------------------------------------ x ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors. x------------------------------------------------------ x ATTY. PETE QUIRINO QUADRA, Intervenor. x--------------------------------------------------------x BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights, Intervenors. x--------------------------------------------------------x LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL, Intervenors. x--------------------------------------------------------x ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x
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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
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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 groups 1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c)2 and Section 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
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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
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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.
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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 States 15 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
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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: 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. 1 2 Address Birthdate MM/DD/YY Signature Verification
Legislative District: Barangay:
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3 4 5 6 7 8 9 10 _________________ Barangay Official (Print Name and Sign) _________________ Witness (Print Name and Sign) __________________ Witness (Print Name and Sign)
There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the BicameralPresidential 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
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RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied) ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 200602 "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
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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.
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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.
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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 .
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This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides: Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied) During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable. Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared: Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit . The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied) Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling: Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters
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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
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people. That is why the Constitution requires that an initiative must be " directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition. In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides: ARTICLE XVII AMENDMENTS OR REVISIONS Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied) Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative. Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission: MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now
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covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x 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 process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. MS. AQUINO: I thank the sponsor; and thank you, Madam President. xxxx MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you.31 (Emphasis supplied) There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The
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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 x x x Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
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It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied) This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: [T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied) Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved . Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." 38 A
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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 coequal 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 UnicameralParliamentary 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
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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 upto-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.
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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
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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 xx 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 years 47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. 49 The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article 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-bycase, 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:
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Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied) The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision " shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the " Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government ." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral parliaments ? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3. A Revisit of Santiago v. COMELEC is Not Necessary The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the
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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 wellsettled 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
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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 cast 53 approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution . This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
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____________________ 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 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.' "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.
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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 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, 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 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
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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.' 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 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
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"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.
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"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.
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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 signature-verification 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
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"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 eight-month 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.
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"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
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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
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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 unicameral-parliamentary 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
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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 parliamentaryunicameral 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.
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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.
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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
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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 proposition 3 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.
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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
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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:
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"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
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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 reexamination 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
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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.
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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. 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.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
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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 (2) A constitutional convention. SECTION 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. 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:
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". . . 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
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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 selfimposed 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, petitioners-intervenors, 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., oppositors-intervenors, 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, oppositorsintervenors, LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositorsintervenors, LUWALHATI ANTONINO, oppositor-intervenor, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO,
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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, oppositors-intervenors, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors, 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., oppositorintervenor; 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 the people through initiative upon a petition of at least twelve per centum of the total number of
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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. 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 Elections 4 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
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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. 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 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." Section 3. Upon the expiration of the term of the incumbent President and Vice 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 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 Representatives" shall be changed to read as "Member(s) of Parliament" and any and all
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references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." 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 Constitution consistent with the principles of local autonomy, decentralization and a 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 bicameral-presidential to a unicameralparliamentary 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.
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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 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. 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 contempt 7 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
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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: 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 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 equally-divided 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
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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 re-examination. 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 even-handed 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
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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. Section 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 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. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision 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: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this
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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. 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 by Commissioner Padilla when he made the distinction between the words "amendments" and "revision?" MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision" MR. MAAMBONG: Thank you.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 bicameralpresidential 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: 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 document to determine how and to what extent they should be altered.21
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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
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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": C. For the purpose of insuring an orderly transition from the bicameral-Presidential 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 Vice-President, 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 Parliament shall convene to propose amendments to, or revisions of, this 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 unicameral-parliamentary 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
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(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: Section 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. 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
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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;
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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: Section 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. (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;
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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 through initiative upon a petition of at least twelve per centum of the total number 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) "[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;" 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."
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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 non-justiciable 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
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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.
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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 RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. 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
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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 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." 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 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.
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(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 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:
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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 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. 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 essential terms and conditions insofar as initiative on amendments to the Constitution is concerned The Supreme Court, likewise, declared that this Commission 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. 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 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. (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:
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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.
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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:
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(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasijudicial 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 initiative on amendments to the Constitution until a sufficient law shall have been 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
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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 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 dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered: a) GRANTING the instant petition;
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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 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-96037). The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private 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: 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 Resolution of June 10, 1997. 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 reexamination. x x x WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)
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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 initiative on amendments to the Constitution until a sufficient law shall have been 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.
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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
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initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination 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 "incomplete, inadequate, or wanting in essential terms and conditions insofar as 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 re-examination 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: 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:
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"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. 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; provided, however, that any and all references therein to "Congress," "Senate," "House of 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 President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 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 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 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." 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.
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(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 session 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 Constitution consistent with the principles of local autonomy, decentralization and a 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. [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:
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Article XVII 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. SECTION 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. 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.
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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. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend
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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 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. 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 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 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: MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."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
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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 SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (3) The Congress, upon a vote of three-fourths of all its Members; or (4) A constitutional convention. 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. 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:
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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 revisions 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 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: 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 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.
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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.
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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;
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- 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.
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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 foreign-owned corporations and duty to notify Congress of every contract; - Section 3 on the power of Congress to determine size of lands of public domain;
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- 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.
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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: 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 revisions 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.
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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 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 unicameral-parliamentary, 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
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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
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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 number of registered voters, of which every legislative district must be represented 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
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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:
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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
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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
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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
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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 (2) A constitutional convention. 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 votes 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.
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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. 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 re-examined and, after doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure to sustain
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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
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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
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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.
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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:
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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 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 deliberation 6 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
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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: 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 Resolution of June 10, 1997. 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
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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 bicameralpresidential 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: 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.
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(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. 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; 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 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 President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 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 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 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 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 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 Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy.
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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 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.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 bicameral-presidential to a unicameralparliamentary 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.
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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 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 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 amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. 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.
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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.
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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-in-Intervention. 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-inIntervention. 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
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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: I
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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
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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
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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 4-pronged 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.
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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
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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.
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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 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. 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.
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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, and practically all other states. 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
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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.
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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 causeoriented groups an opportunity to articulate their ideas in a truly democratic forum, thus, the
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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. Thank you, Mr. Speaker. 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
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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 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. 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 MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment 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?" 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." 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."
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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, oppositors-intervenors 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, oppositorsintervenors 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
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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
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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
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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 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, 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.
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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. Sovereignty resides in the people and all government authority emanates from 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 x 73 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?
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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)
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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
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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
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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. V 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 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. We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments 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.
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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 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." 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
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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 3 rd 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.
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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
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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) justices 107 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
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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 non-majority 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
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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 well-settled. 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 oneyear 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 two-justice 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
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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
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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
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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 intervenor-petitioner 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. Sabido128A 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.
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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.
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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
RAUL L. 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, ANTONIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., OppositorsIntervenors; 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., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION
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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
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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
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. 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., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, 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
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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.
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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;
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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. 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, 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 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 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
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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
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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 unicameral-parliamentary. 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
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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 onesubject 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
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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.
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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
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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 democracy 33 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
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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. 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, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors; 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 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
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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 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.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
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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. I 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 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;
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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-96037). 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. 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
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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 intervenor-petitioner 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
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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 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 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. 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.
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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
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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 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, 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
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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
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS , petitioners, vs. The COMMISSION ON ELECTIONS, respondent. G.R. No. 174299 October 25, 2006
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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 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 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. 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.
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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 Defensor-Santiago, 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). 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. In the said case, the Court's fallo states as follows: WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition;
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b) DECLARING R. A. 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 Resolutions 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-96037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents. Resolution on the matter of contempt is hereby reserved. 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.
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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 Resolution of June 10, 1997. 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: 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.
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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). 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 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. (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 herein;
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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."
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: 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.
Sections 1, 2, 3, and 4 of Article VII will be changed thus:
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.
6
Sections 1-5 of the Transitory Provisions read:
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. 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; provided,
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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 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 President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 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 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 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 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 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) 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. 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. 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.
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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 (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. xxxx Section 5. x x x x (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 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.
8
336 Phil. 848 (1997); Resolution dated 10 June 1997. 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: 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. The Congress shall provide for the implementation of the exercise of this right. 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 essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The Supreme Court likewise declared that this Commission should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the
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Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. 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,
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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). Stumpf v. Law, 839 P. 2d 120, 124 (1992). Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.
19
20
21
Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7 September 2006.
22
www.ulap.gov.ph. www.ulap.gov.ph/reso2006-02.html.
23
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."
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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. 698 P.2d 1173, 1184 (1985). I RECORD 386, 392, 402-403. 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994). 392 P.2d 636, 638 (1964). 930 P.2d 186, 196 (1996), internal citations omitted. Livermore v. Waite, 102 Cal. 113, 118-119 (1894).
30
31
32
33
34
35
36
Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286 (1978).
37
Id. Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991). California Association of Retail Tobacconists v. State, 109 Cal.App.4 th 792, 836 (2003). See note 44, infra.
38
39
40
41
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294 (2003).
42
238 So.2d 824 (1970). Id. at 830-832. As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments.
43
44
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.
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47
Section 1, Article V of the Constitution. Section 11(1), Article XVI of the Constitution. Section 2, Article VII of the Constitution.
48
49
50
This section provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."
51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999). G.R. No. 129754, Resolution dated 23 September 1997.
52
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 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.
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"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: 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."
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
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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.
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. 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 (2) A constitutional convention. "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 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. "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.
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"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 3 rd 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.)
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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. SEC. 5. Requirements. x x x (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 therefore; 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 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.
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). Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118 (1965).
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:
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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.
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). 196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949). 801 P. 2d 1077 (Cal. 1990). 583 P. 2d 1281 (Cal. 1982). Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).
14
15
16
17
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.
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21
Id. Supra note 14.
22
23
The Constitution of the Republic of the Philippines, Vol. II, 1 st 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. 14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349. A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas, S.J., p. A15. Article II, Section 1 of the 1987 Constitution.
25
26
27
SANDOVAL-GUTIERREZ, J.:
1
Works, Letter 164. G.R. No. 127325, March 19, 1997, 270 SCRA 106. Resolution dated June 10, 1997, G.R. No. 127325.
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.
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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. Supra. Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997. G.R. No. 109645, March 4, 1996, 254 SCRA 234.
12
13
14
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.
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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. Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296. July 9, 1986. Records of the Constitutional Commission, No. 26. Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p. 1161. 242 N. W. 891 259 Mich 212. State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55. City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134. Adams v. Gunter Fla, 238 So. 2d 824. 196 P.2d 787. Adams v. Gunter Fla. 238 So.2d 824. Mc Fadden v. Jordan, supra. Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).
19
20
21
22
23
18
25
26
27
28
29
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 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.
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).
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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 majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.
37
7 How (48 US) 1 (1849). 328 US 549 (1946). 77 Phil. 192 (1946). 103 Phi. 1051 (1957). G.R. No. 35546, September 17, 1974, 50 SCRA 559. 369 US 186 (1962). G.R. No. 85344, December 21, 1989, 180 SCRA 496. G.R. No. 88211, September 15, 1989, 177 SCRA 668. Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50 SCRA 30.
38
39
40
41
42
43
44
45
CALLEJO, SR., J.:

1
Entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor. Section 2(1), Article IX-C, 1987 Constitution. Petition, pp. 12-14.
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. People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.
Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630, November 25, 1982, 118 SCRA 664.
8
People v. Court of Appeals, supra.
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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. Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254. 974 S.W.2d 451 (1998). Id. at 453.
12
13
14
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. G.R. No. 129754. Minute Resolution, September 23, 1997, pp. 1-2. Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422. Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA 948. Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506.
17
18
19
20
21
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. See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002, 389 SCRA 480.
26
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.
Page 257 of 435

28
Amended Petition for Initiative, pp. 4-7. Id. at 7. I Records of the Constitutional Commission 373. Id. at 371. Id. at 386. Id. at 392. Id. at 402-403. No. L-36142, March 31, 1973, 50 SCRA 30. Id. at 367. SINCO, Philippine Political Law 43-44. 37 S.E.2d 322 (1946). Id. at 330. Id. Sounding Board, Philippine Daily Inquirer, April 3, 2006. Introduction to the Journal of the Constitutional Commission. BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9. SCHWARTZ, CONSTITUTIONAL LAW 1. Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987. See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909). Id. 196 P.2d 787 (1948). Id. at 798. Ellingham v. Dye, 99 N.E. 1 (1912). Dissenting Opinion of Justice Puno, p. 36.
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
Page 258 of 435

52
Id. at 39. Supra note 38. McFadden v. Jordan, supra note 48. Id. at 799. Supra note 41. Annex "1363." Annex "1368." Annex "1369." Annex "1370." Annex "1371." Annex "1372." Annex "1374." Annex "1375." Annex "1376." Annex "1377." Annex "1378." Annex "1379." Annex "1380." Annex "1381." Annex "1382." Annex "1383." Annex "1385." Annex "1387." Annex "1388."
53
54
55
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57
58
59
60
61
62
63
64
65
66
67
68
69
70
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72
73
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75
Page 259 of 435

76
Annex "1389." Annex "1391." Annex "1392." Annex "1393." Annex "1395." Annex "1396." Annex "1397." Annex "1398." Annex "1399." Annex "1400." Annex "1401." Annex "1402." Annex "1404." Annex "1405." Annex "1406." Annex "1407." Annex "1408." Annex "1409." Annex "1410." Annex "1411." Annex "1412." Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423. See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158 SCRA 508. Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.
77
78
79
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81
82
83
84
85
86
87
88
89
90
91
92
93
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96
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Page 260 of 435

100
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639. Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540. Taada v. Cuenco, 103 Phil. 1051 (1957). Id. G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312. Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra note 36. 119 N.W. 408 (1909). 22 Minn. 400 (1876). 96 S.W. 396 (1906). 63 N.J. Law 289. 77 Miss. 543 (1900). Section 1, Article II, 1987 Constitution. Dissenting Opinion of Justice Puno, p. 49. COOLEY, A Treatise on the Constitutional Limitations 56, cited in Ellingham v. Dye, supra. Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
101
102
103
104
105
106
107
108
109
110
111
112
113
114
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). McFadden v. Jordan, supra note 48. Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra. 15 N.W. 609 (1883). Id. at 630.
117
118
119
120
AZCUNA, J.:
1
G.R. No. 127325, March 19, 1997 and June 10, 1997. 100 Phil. 501 (1956).
Page 261 of 435

PUNO, J.:
1
M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819). Section 1, Article II, 1987 Constitution. 270 SCRA 106, March 19, 1997. Id. at 153. Id. at 157.
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.
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. G.R. No. 127325, March 19, 1997, 270 SCRA 106. Petition, pp. 12-14. Advisory issued by Court, dated September 22, 2006. Exhibit "B," Memorandum of Petitioner Lambino.
11
12
13
14
15
Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame Law Rev., 19111912, (May 2005).
16
Ibid. Id. at 1913.
17
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. Id. at 69. Id. at 67.
20
21
Page 262 of 435

22
Id. at 69. Consovoy, supra note 18, at 57. Id. at 58. Id. at 64. Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting). Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter, concurring). Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens, dissenting). Barnhart, supra note 15, at 1922. Id. at 1921.
23
24
25
26
27
28
29
30
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). 163 U.S. 537 (1896). G.R. No. 127882, December 1, 2004, 445 SCRA 1. G.R. No. 139465, October 17, 2000, 343 SCRA 377. Barnhart, supra note 15, at 1915. 112 S.Ct. 2791 (1992). Section 5(b). Ibid. Santiago v. Commission on Elections, supra note 11, at 145. 85 Record of the House of Representatives 140-142 (February 14, 1989). 85 Record of the house of representatives 142-143 (February 14, 1989). Zeringue v. State Dept. of Public Safety , 467 So. 2d 1358. I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986). Id. at 400, 402-403.
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34
35
36
37
38
39
40
41
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43
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45
Page 263 of 435

46
v record, constitutional commission 806 (October 10, 1986). Opposition-in-Intervention filed by ONEVOICE, p. 39. Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30. Introduction to Political Science, pp. 397-398. Section 1, Art. II of the 1987 Constitution. Eighth Edition, p. 89 (2004). Ibid. Id. at 1346. Ibid. Third Edition, p. 67 (1969). Id. at 68. Id. at 1115. Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46.
47
48
49
50
51
52
53
54
55
56
57
58
59
Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive Secretary, No. L361432, March 31, 1973, 50 SCRA 30, 367-368.
60
J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973). E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984). N. Gonzales, Philippine Political Law 30 (1969 ed.).
61
62
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. i record, constitutional commission 373 (July 8, 1986). The opinion was actually made by Justice Felix Antonio.
65
66
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).
Page 264 of 435

69
H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2nd ed. 1897). V. Sinco, supra note 58. Ibid. No. L-1232, 79 Phil. 819, 826 (1948). IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986). Id. at 752. Id. at 769. Id. at 767-769. Id. at 377. Id. at 395. Sinco, supra note 58, at 22. Id. at 20-21. Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727. G. Wood, The Creation of the American Republic, 530. Sinco, supra note 58, at 29. State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109 (1946). Town of Whitehall v. Preece, 1998 MT 53 (1998). G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p. 653. Memorandum for petitioner Aumentado, pp. 151-152. Id. at 153-154. L-44640, October 12, 1976, 73 SCRA 333, 360-361. Section 2, Article XVII, 1987 Constitution. Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
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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.
Page 265 of 435

Casquejo, Annex "C," Memorandum of Oppositor-Intervenor 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. Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al. Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc. Annexes 30-31, Id. Annexes 44-64, Id. Consolidated Reply of Petitioner Aumentado, p. 54. Exhibit "E," Memorandum of Petitioner Lambino. Annex "A," Consolidated Response of Petitioner Aumentado. Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13. Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961). BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984). 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
94
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Page 266 of 435

ASSOCIATE JUSTICE CARPIO: But you asked your friends or your associates to re-print, if they can(?) ATTY. LAMBINO: Yes, Your Honor. ASSOCIATE JUSTICE CARPIO: 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 ASSOCIATE JUSTICE CARPIO: 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 ASSOCIATE JUSTICE CARPIO: 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.
Page 267 of 435

ASSOCIATE JUSTICE CARPIO: 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 ASSOCIATE JUSTICE CARPIO: 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 ASSOCIATE JUSTICE CARPIO: 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. ASSOCIATE JUSTICE CARPIO: That is all you can assure us? ATTY. LAMBINO:
Page 268 of 435

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. 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
111
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). 781 P. 2d 973 (Alaska, 1989). Id. at 982-84 (Compton, J., concurring). Id. at 975-78. Negri v. Slotkin, 244 N.W. 2d 98 (1976). 112 Fla. 734, 151 So. 284 (1933).
114
115
116
117
118
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). 329 F. 2d 541 (1964).
121
Page 269 of 435

122
239 F. 2d 532 (9th Cir. 1956). Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910). 331 N.E. 2d 65 (1975). Neil v. Biggers, supra note 108. Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.
123
124
125
126
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. L-29689, 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. G.R. No. 127325, March 19, 1997, 270 SCRA 106. G.R. No. 129754, September 23, 1997.
CORONA, J.:
1
Abrams v. United States, 250 U.S. 616. 336 Phil. 848 (1997). Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1. Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.
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).
Page 270 of 435

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. In re Initiative Petition No. 362 State Question 669 , 899 P.2d 1145 (Okla. 1995).
11
TINGA, J.:
1
G.R. No. 127325, 19 March 1997, 270 SCRA 106. G.R. No. 129754, 23 September 1997.
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. 456 Phil. 1 (2003).
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, 119-121 (1940).
Page 271 of 435

9
351 Phil. 692 (1998).
10
As 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. 129 Phil. 507, 516 (1967). G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75. G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326. Ibid. G.R. No. 155855, 26 January 2004, 421 SCRA 92.
12
13
14
15
16
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).
Page 272 of 435

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).
26
Id. 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. G.R. No. 151944, January 20, 2004, 420 SCRA 365. Id., at 377. Emphasis supplied. See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.
29
30
31
32
From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History of the Peloponnesian War.
33
H. 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.
Article XVII, Constitution. G.R. No. 127325, 19 March 1997, 270 SCRA 106. Id. at 157.
Page 273 of 435

5
Id. at 124.
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. G.R. No. 129754.
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). Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997. Santiago v. Comelec, supra note 2 at 170-171. Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.
11
12
13
VELASCO, JR., J.:

1
G.R. No. 127535, March 19, 1997, 270 SCRA 106. Id.
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. Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA 522, 529. G.R. No. 129754, September 23, 1997. V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).
================================================================================= GR No: Date:
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SC: En Banc
SUIT:
ISSUES:
DISSENT:
SEPARATE OPINION:
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-34150 October 16, 1971 ARTURO M. TOLENTINO, petitioner, vs.
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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
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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.
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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;
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(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
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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
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the theory, advanced in these four (4) cases that the issues therein raised were political questions the determination of which is beyond judicial review. Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people as the repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution of the Philippines) to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when exercising the same, it is said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, (Of amending the Constitution) for their authority does not emanate from the Constitution they are the very source of all powers of government including the Constitution itself. Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite the eminently political character of treaty-making power. In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution is essentially justiciable not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and derives all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which provides: ARTICLE XV AMENDMENTS
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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.
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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.
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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.
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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
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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 eighteenyear-olds should be allowed to vote, simply because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or rejection. Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of the existing social and governmental institutions, including the provisions of the fundamental law related to the well-being and economic security of the underprivileged classes of our people as well as those concerning the preservation and protection of our natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that only the collective judgment of its members as to what is warranted by the present condition of things, as they see it, can limit the extent of the constitutional innovations the Convention may propose, hence the complete substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court does not consider this case to be properly the one in which it should discharge its constitutional duty in such premises. The issues raised by petitioner, even those among them in which respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its constitutionally as signed mission in the manner and form it may conceive best, and so the Court
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may step in to clear up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly, the Constitutional Convention stands almost in a unique footing in that regard. In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts. Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may be exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with the Congress. In the view the Court takes of present case, it does not perceive absolute necessity to resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the members of the Court in respect to this issue creates the need for more study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this question until a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive as any can be.
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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?
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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.
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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
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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 21year 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
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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. FERNANDO, J., concurring and dissenting: 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.
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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 amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists. Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a
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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
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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
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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 21year 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
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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. FERNANDO, J., concurring and dissenting: 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.
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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 amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists. Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a
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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
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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. Footnotes 1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae unless invited or allowed, by the Court. REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring: 1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817. 2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817. 3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O. Zaldivar, Fred Ruiz Castro and Eugenio Angeles. 4 21 SCRA 821. FERNANDO, J., concurring and dissenting: 1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in Constitutional Law, pp. 1, 4-5 (1936). It was therein stated: "In a governmental and proper sense, law is the highest act of a people's sovereignty while their government and Constitution remain unchanged. It is the supreme will of the people expressed in the forms and by the authority of their Constitution. It is their own appointed mode through which they govern themselves, and by which they bind themselves. So long as their frame of government is unchanged in its grant of all legislative power, these laws are supreme over all subjects unforbidden by the instrument itself. The calling of a convention, and regulating its action by law, is not forbidden in the Constitution. It is a conceded manner, through which the people may exercise the rights reserved in the bill of rights. ... The right of the people to restrain their delegates by law cannot be denied, unless the power to call a convention by law, and the right of self protection be also denied." 2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all government authority emanates from them." . 3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this framework is confided to the wisdom the faithfulness, and the patriotism of this great convocation, representing the people in their sovereignty." The Sproule decision was cited with approval four years later by the Mississippi Supreme Court anew in Dickson
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v. State, 20 So. 841. A 1908 decision of the Southern State of Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the Sproule dictum. 4 Orfield on The Amending of the Federal Constitution, 45-46 (1942). 5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections shall have exclusive charge of its 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." Cf. Abcede v. Imperial, 103 Phil. 136 (1958). 6 "According to Sec. 14 of the 1971 Constitutional Convention Act (1970):"Administration and Technical Assistance. -- All government entities, agencies and instrumentalities, including the Senate and House of Representatives, shall place at the disposal of the Convention such personnel premises, and furniture thereof as can, in their judgment be spared without detriment to public service, without cost, refund or additional pay." ================================================================================= GR No: Date: SC: En Banc
SUIT:
ISSUES:
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DISSENT:
SEPARATE OPINION:
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-28196 November 9, 1967
RAMON A. GONZALES, petitioner, vs. COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents. G.R. No. L-28224 November 9, 1967
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs. COMMISSION ON ELECTIONS, respondent. No. 28196: Ramon A. Gonzales for and in his own behalf as petitioner. Juan T. David as amicus curiae Office of the Solicitor General for respondents. No. 28224: Salvador Araneta for petitioner. Office of the Solicitor General for respondent. CONCEPCION, C.J.: G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for judgment: 1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and
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2) declaring said Act unconstitutional and void. The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions: 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have, at least, one (1) member; 2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November, 1971;" and 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize Senators and members of the House of Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress. Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967. The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association hereinafter referred to as the PHILCONSA were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a substantially identical case brought by said organization before the Commission on Elections,1 which was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court had been submitted thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-28224. Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in said case. The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his answer in L28224 the Solicitor General maintains that this Court has no jurisdiction over the subject-matter of L28224, upon the ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator
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Arturo M. Tolentino, who appeared before the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to said petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would, in effect, render in operational the legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its acts null and void." JURISDICTION As early as Angara vs. Electoral Commission,4 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 vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Taada vs. Cuenco,8 and Macias vs. Commission on Elections.9 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 a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress.10 It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours11 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.12 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,13 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,14 the power to declare a treaty unconstitutional,15 despite the eminently political character of treaty-making power.
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In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. THE MERITS Section 1 of Article XV of the Constitution, as amended, reads: The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments shall be valid as part of" the "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." In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged that said resolutions are null and void because: 1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a convention to propose amendments, are, at best, de facto Congressmen; 2. Congress may adopt either one of two alternatives propose amendments or call a convention therefore but may not avail of both that is to say, propose amendment and call a convention at the same time; 3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must be a special election, not a general election, in which officers of the national and local governments such as the elections scheduled to be held on November 14, 1967 will be chosen; and 4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to the people for ratification, must be held under such conditions which, allegedly, do not exist as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said amendments. Legality of Congress and Legal Status of the Congressmen The first objection is based upon Section 5, Article VI, of the Constitution, which provides: The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as
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may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory. It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void. It is not true, however, that Congress has not made an apportionment within three years after the enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No. 3040, 17 purporting to make said apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines.18 Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress" and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The major premise of this process of reasoning is that the constitutional provision on "apportionment within three years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said apportionment does not justify, however, the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in said fundamental law. The effect of this omission has been envisioned in the Constitution, pursuant to which: . . . Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. . . . . The provision does not support the view that, upon the expiration of the period to make the apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress shall continue to function with the representative districts existing at the time of the expiration of said period. It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an apportionment had to be made necessarily before the first elections to be held after the inauguration of the Commonwealth of the Philippines, or in 1938. 19 The assumption, is, however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration, would expire after the elections in 1938.
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What is more, considering that several provisions of the Constitution, particularly those on the legislative department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted said amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the districts for representatives , must have known that the three-year period therefor would expire after the elections scheduled to be held and actually held in 1941. Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections. Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on November 30, 1960, it follows that the three-year period to make the apportionment did not expire until 1963, or after the Presidential elections in 1961. There can be no question, therefore, that the Senate and the House of Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became illegal holder of their respective offices, and were de facto officers. Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of Representatives, and are not aware of any rule or principle of law that would warrant such conclusion. Neither do they allege that the term of office of the members of said House automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact, neither our political law, nor our law on public officers, in particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence of a statute to this effect. Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with said Election Law, and the legal provisions creating Congress with a House of Representatives composed of members elected by qualified voters of representative districts as they existed at the time of said elections remained in force, we can not see how said Members of the House of Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to make a reapportionment within the period aforementioned. Upon the other hand, the Constitution authorizes the impeachment of the President, the VicePresident, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but also, their main function. This provision indicates that, despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic. Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public as distinguished from the officer in question is concerned.21 Indeed,
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otherwise, those dealing with officers and employees of the Government would be entitled to demand from them satisfactory proof of their title to the positions they hold, before dealing with them, or before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments.22 One can imagine this great inconvenience, hardships and evils that would result in the absence of the de facto doctrine. As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned. It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No rights had vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection therewith. The Court is, also, unanimous in holding that the objection under consideration is untenable. Available Alternatives to Congress Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the Constitution or call a convention for that purpose, but it can not do both, at the same time. This theory is based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances and none has brought to our attention supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the other. In other words, they were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in, different sessions or different days of the same congressional session. And, neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be submitted for ratification before said convention is held? The force of this argument must be conceded. but the same impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof to
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permit Members of Congress to run for election as delegates to the constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of 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 contention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.
There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general, election. The circumstance that three previous amendments to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be submitted to the people's approval independently of the election of public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice of personalities involved in general elections, particularly when provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the abovequoted provision of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed as meaning a special election. Some members of the Court even feel that said term ("election") refers to a "plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer speculation.
The majority view although the votes in favor thereof are insufficient to declare Republic Act No. 4913 unconstitutional as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days prior to the election;"
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(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for examination by the qualified electors during election day;"
(4) that "when practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people of the subject submitted to them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each municipal and provincial government office building and in each polling place not later than the twenty-second day of April, nineteen hundred and thirty-five, and shall remain posted therein continually until after the termination of the election. At least ten copies of the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a conspicuous place in each municipal and provincial office building and in each polling place not later than the twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:
The said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the election. At least ten copies of said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:
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The said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after the election. At least, ten copies of the said amendment shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall also be kept in each polling place.
The main difference between the present situation and that obtaining in connection with the former proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had taken sides on previous amendments to the Constitution except, perhaps, the woman's suffrage and, consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained from discussing the same in the current political campaign. Such debates or polemics as may have taken place on a rather limited scale on the latest proposals for amendment, have been due principally to the initiative of a few civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the substance of said proposals, which is under R. B. H. No. 1 the increase of the maximum number of seats in the House of Representatives, from 120 to 180, and under R. B. H. No. 3 the authority given to the members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress. We who constitute the minority believe that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention.
We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered.
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Makalintal and Bengzon, J.P., JJ., concur. Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election. At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. The Commission on Elections shall make available copies of each amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution.
xxx
xxx
xxx
Sec. 4. The ballots which shall be used in the election for the approval of said amendments shall be printed in English and Pilipino and shall be in the size and form prescribed by the Commission on Elections: Provided, however, That at the back of said ballot there shall be printed in full Resolutions of both Houses of Congress Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty-seven, proposing the amendments: Provided, further, That the questionnaire appearing on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section five of Article VI of our Constitution printed at the back of this ballot?
Are you in favor of the proposed amendment to section sixteen of Article VI of our Constitution printed at the back of this ballot?
To vote for the approval of the proposed amendments, the voter shall write the word "yes" or its equivalent in Pilipino or in the local dialect in the blank space after each question; to vote for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in the aforesaid provisions is sufficient for the purpose of having the proposed amendments submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required by the Act to make it adhere more closely to the constitutional requirement. Certainly it would have been out of place to provide, for instance, that government officials and employees should go out and explain the amendments to the people, or that they should be the subject of any particular means or form of public discussion.
The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on the fact that there are so many other issues at stake in the coming general election that the attention of the electorate, cannot be entirely focused on the proposed amendments, such that there is a failure to properly submit them for ratification within the intendment of the Constitution. If that is so, then the defect is not intrinsic in the law but in its implementation. The same manner of submitting the proposed amendments to the people for ratification may, in a different setting, be sufficient for the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be made to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as unconstitutional it must be so by reason of some irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or invalid, according to circumstances not found in its provisions, such as the zeal with which they are carried out. To such a thesis I cannot agree. The criterion would be too broad and relative, and dependent upon individual opinions that at best are subjective. What one may regard as sufficient compliance with the
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requirement of submission to the people, within the context of the same law, may not be so to another. The question is susceptible of as many views as there are viewers; and I do not think this Court would be justified in saying that its own view on the matter is the correct one, to the exclusion of the opinions of others.
On the other hand, I reject the argument that the ratification must necessarily be in a special election or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of " an election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would place on this provision, namely, that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of all citizens of this country, filed this suit for prohibition with preliminary injunction to restrain the Commission on Elections, Director of Printing and Auditor General from implementing and/or complying with Republic Act 4913, assailing said law as unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which the aforesaid proposed amendments shall be voted upon by the people, and appropriates funds for said election. Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the provision that Congress shall by law make an apportionment within three years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention without forfeiting their seats.
Since both petitions relate to the proposed amendments, they are considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the Constitution, to the people for approval, at the general election of 1967 instead of at a special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed with the 3/4 vote in joint session required when Congress proposes amendments to the Constitution, said Republic Act being a step in or part of the process of proposing amendments to the Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the face of the ballot or otherwise rendering clear the import of the proposed amendments, such as by stating the provisions before and after said amendments, instead of printing at the back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for amending the Constitution is concerned, the issue is cognizable by this Court under its powers to review an Act of Congress to determine its conformity to the fundamental law. For though the Constitution leaves Congress free to propose whatever Constitutional amendment it deems fit, so that the substance or content of said proposed amendment is a matter of policy and wisdom and thus a political question, the Constitution nevertheless imposes requisites as to the manner or procedure of proposing such amendments, e.g., the three-fourths vote requirement. Said procedure or manner, therefore, from being left to the discretion of Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that extent, all questions bearing on whether Congress in proposing amendments followed the procedure required by the Constitution, is perforce justiciable, it not being a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the point. It nowhere requires that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at which the amendments are submitted to the people for their ratification." To join
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it with an election for candidates to public office, that is, to make it concurrent with such election, does not render it any less an election at which the proposed amendments are submitted to the people for their ratification. To prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring a special election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase with some word such as "special" or "solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it would not have been better to provide for a separate election exclusively for the ratification of the proposed amendments. The point however is that such separate and exclusive election, even if it may be better or wiser, which again, is not for this Court to decide, is not included in the procedure required by the Constitution to amend the same. The function of the Judiciary is "not to pass upon questions of wisdom, justice or expediency of legislation".2 It is limited to determining whether the action taken by the Legislative Department has violated the Constitution or not. On this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election to which the amendments are submitted to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means, or also means, to provide for how, when, and by what means the amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to "propose amendments". And then in the second sentence, it provides that "such amendments . . . shall be submitted to the people for their ratification". This clearly indicates that by the term "propose amendments" in the first sentence is meant to frame the substance or the content or the WHAT-element of the amendments; for it is this and this alone that is submitted to the people for their ratification. The details of when the election shall be held for approval or rejection of the proposed amendments, or the manner of holding it, are not submitted for ratification to form part of the Constitution. Stated differently, the plain language of Section 1, Art. XV, shows that the act of proposing amendments is distinct from albeit related to that of submitting the amendments to the people for their ratification; and that the 3/4 voting requirement applies only to the first step, not to the second one.
It follows that the submission of proposed amendments can be done thru an ordinary statute passed by Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments, already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due process. An examination of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than October 14, 1967, to remain posted until after the elections, the placing of copies of the proposed amendments in the polling places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the look-out of the voter and the responsibility of the citizen. As long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed.
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Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is conclusively presumed to know them and they are available should he want to check on what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these years. Perhaps it would have been more convenient for the voters if the present wording of the provisions were also to be printed on the ballot. The same however is a matter of policy. As long as the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments. These are for the people in their sovereign capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both call a convention and propose amendments; second, that the present Congress is a de facto one, since no apportionment law was adopted within three years from the last census of 1960, so that the Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a convention for that purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention called for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note that the Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It however further states in the next sentence: "Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present assembly districts." The failure of Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such case, rendering legal and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur with the opinion of the Chief Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice discusses the matter with a fullness that erases doubts and misgivings and clarifies the applicable principles. A few words may however be added.
We start from the premise that only where it can be shown that the question is to be solved by public opinion or where the matter has been left by the Constitution to the sole discretion of any of the political branches, as was so clearly stated by the then Justice Concepcion in Taada v. Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the present question, it is hard to speak with certitude considering Article XV, that Congress may be entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed Coleman v. Miller,3 in its holding that certain aspects of the amending process may be considered political. His opinion quoted with approval the view of Justice Black, to which three other members of the United States Supreme Court agreed, that the process itself is political in its entirety, "from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve the matter neatly. The judiciary would be spared the at times arduous and in every case soul-searching process of determining whether the procedure for amendments required by the Constitution has been followed.
At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the requirements of Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the theory of
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political question to avoid passing on such a matter of delicacy might under certain circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender.
What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason, would no longer be controlling. There is comfort in the thought that the view that then prevailed was itself a product of the times. It could very well be that considering the circumstances existing in 1947 as well as the particular amendment sought to be incorporated in the Constitution, the parity rights ordinance, the better part of wisdom in view of the grave economic situation then confronting the country would be to avoid the existence of any obstacle to its being submitted for ratification. Moreover, the Republic being less than a year old, American Supreme Court opinions on constitutional questions were-invariably accorded uncritical acceptance. Thus the approach followed by Justice Tuason is not difficult to understand. It may be said that there is less propensity now, which is all to the good, for this Court to accord that much deference to constitutional views coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers Act,5 one should not ignore what would ensue if a particular mode of construction were followed. As he so emphatically stated, "We test a rule by its results."
The consequences of a judicial veto on the then proposed amendment on the economic survival of the country, an erroneous appraisal it turned out later, constituted an effective argument for its submission. Why not then consider the question political and let the people decide? That assumption could have been indulged in. It could very well be the inarticulate major premise. For many it did bear the stamp of judicial statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the foreseeable future judicial inquiry to assure the utmost compliance with the constitutional requirement would be a more appropriate response.
SANCHEZ, J., in separate opinion:
Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of the opinion which follows.
Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the Senate and the House of Representatives on March 16, 1967 with the end in view of amending vital portions of the Constitution.
Since the problem here presented has its roots in the resolutions aforesaid of both houses of Congress, it may just as well be that we recite in brief the salient features thereof. Resolution No. 1 increases the membership of the House of Representatives from 120 to 180 members, and immediately apportions 160 seats. A companion resolution is Resolution No. 3 which permits Senators and Congressmen without forfeiting their seats in Congress to be members of the Constitutional Convention1 to be convened, as provided in another resolution Resolution No. 2. Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to be submitted to the people for their ratification next November 14, 1967. Resolution No. 2 just adverted to calls for a constitutional convention also to propose amendments to the Constitution. The delegates thereto are to be elected on the second Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments proposed by the convention to be submitted to the people thereafter for their ratification.
Of importance now are the proposed amendments increasing the number of members of the House of representatives under Resolution No. 1, and that in Resolution No. 3 which gives Senators and Congressmen the right to sit as members of the constitutional convention to be convened on June 1, 1971. Because, these are the two amendments to be submitted to the people in the general elections soon to be held on November 14, 1967, upon the provisions of Section 1, Republic Act 4913, which reads:
The amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of both Houses Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for approval at the general election which shall be held on November fourteen, nineteen hundred and sixty- seven, in accordance with the provisions of this Act.
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Republic Act 4913 projects the basic angle of the problem thrust upon us the manner in which the amendments proposed by Congress just adverted to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed amendments to the Constitution may become effective, Section 1, Article XV thereof commands that such amendments must be "approved by a majority of the votes cast at an election at which amendments are submitted to the people for their ratification."2 The accent is on two words complementing each other, namely, "submitted" and "ratification."
1. We are forced to take a long hard look at the core of the problem facing us. And this, because the amendments submitted are transcendental and encompassing. The ceiling of the number of Congressmen is sought to be elevated from 120 to 180 members; and Senators and Congressmen may run in constitutional conventions without forfeiting their seats. These certainly affect the people as a whole. The increase in the number of Congressmen has its proportional increase in the people's tax burdens. They may not look at this with favor, what with the constitutional provision (Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for instance, may balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their own, on the theory of equal representation. And then, people may question the propriety of permitting the increased 180 Congressmen from taking part in the forthcoming constitutional convention and future conventions for fear that they may dominate its proceedings. They may entertain the belief that, if at all, increase in the number of Congressmen should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take place. They probably would ask: Why the hurry? These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that constitutional amendments be submitted to the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will.
And so, our approach to the problem of the mechanics of submission for ratification of amendments is that reasoning on the basis of the spirit of the Constitution is just as important as reasoning by a strict adherence to the phraseology thereof. We underscore this, because it is within the realm of possibility that a Constitution maybe overhauled. Supposing three-fourths of the Constitution is to be amended. Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We believe it to be beyond debate that in some such situations the amendments ought to call for a constitutional convention rather than a legislative proposal. And yet, nothing there is in the books or in the Constitution itself. which would require such amendments to be adopted by a constitutional convention. And then, too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor be initiated by Congress and thereafter presented to the people for their ratification.
In the context just adverted to, we take the view that the words "submitted to the people for their ratification", if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in insidious influences. We believe, the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform very citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent, consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said "A good Constitution should beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved
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the excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are to be feared unless the benefit is certain . As Montaign says: "All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse ." Am. Law Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the people are not sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner can it be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification?" Our answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 the statute that submits to the people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of the nature of the amendments throughout the country. There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election.
(2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election.
(3) At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day.
(4) When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place.
(5) The Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for dissemination of information regarding the amendments effectively brings the matter to the people. A dissection of the mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does not reach the barrios. And even if it reaches the barrios, is it available to all? And if it is, would all under stand English? Second, it should be conceded that many citizens, especially those in the outlying barrios, do not go to municipal, city and/or provincial office buildings, except on special occasions like paying taxes or responding to court summonses. And if they do, will they notice the printed amendments posted on the bulletin board? And if they do notice, such copy again is in English (sample submitted to this Court by the Solicitor General) for, anyway, the statute does not require that it be in any other language or dialect. Third, it would not help any if at least five copies are kept in the polling place for examination by qualified electors during election day. As petitioner puts it, voting time is not study time. And then, who can enter the polling place, except those who are about to vote? Fourth, copies in the principal native languages shall be kept in each polling place. But this is not, as Section 2 itself implies, in the nature of a command because such copies shall be kept therein only "when practicable" and "as may be determined by the Commission on Elections." Even if it be said that these are available before election, a citizen may not intrude into the school building where the polling places are usually located without disturbing the school classes being held there. Fifth, it is true that the Comelec is directed to make available copies of such amendments in English, Spanish or whenever practicable, in the principal native languages, for free distribution. However, Comelec is not required to actively distribute them to the people. This is significant as to people in the provinces, especially those in the far-flung barrios who are completely unmindful of the discussions that go on now and then in the cities and centers of population on the merits and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency which may hold copies available, but which copies may not be distributed at all. Finally, it is of common knowledge that Comelec has more than its hands full in these pre-election days. They cannot possibly make extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to this Court would show that only the amendments are printed at the back. And this, in pursuance to Republic Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso. People do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments.
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We, therefore, hold that there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present election campaign the focus is on the election of candidates. The constitutional amendments are crowded out. Candidates on the homestretch, and their leaders as well as the voters, gear their undivided efforts to the election of officials; the constitutional amendments cut no ice with them. The truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote would give one the impression that the constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes of many elective officials, on the national and local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a clash between votes for a candidate and conscience on the merits and demerits of the constitutional amendments, we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them to equally ratify them properly is the meat of the constitutional requirement, is reflected in the sequence of uniform past practices. The Constitution had been amended thrice in 1939, 1940 and 1947. In each case, the amendments were embodied in resolutions adopted by the Legislature, which thereafter fixed the dates at which the proposed amendments were to be ratified or rejected. These plebiscites have been referred to either as an "election" or "general election". At no time, however, was the vote for the amendments of the Constitution held simultaneously with the election officials, national or local. Even with regard to the 1947 parity amendment; the record shows that the sole issue was the 1947 parity amendment; and the special elections simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against indiscriminate changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be made that in the matter of the alterations of the law of the land, their true voice be heard? The answer perhaps is best expressed in the following thoughts: "It must be remembered that the Constitution is the people's enactment. No proposed change can become effective unless they will it so through the compelling force of need of it and desire for it ."4
For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the Constitution.
Zaldivar and Castro, JJ., concur. Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
REYES, J.B.L., J., concurring:
I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal to amend the Constitution requires (Art. XV) a threefourths (3/4) vote of all the members of each legislative chamber, the highest majority ever demanded by the fundamental charter, one higher even than that required in order to declare war (Sec. 24, Article VI), with all its dire consequences. If such an overwhelming majority, that was evidently exacted in order to impress upon all and sundry the seriousness of every constitutional amendment, is asked for a proposal to amend the Constitution, 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 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 at an election wherein the people could devote undivided attention to the subject. That this was the intention and the spirit of the provision is corroborated in the case of all other constitutional amendments in the past, that were submitted to and approved in special elections exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.
Footnotes
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1 Urging the latter to refrain from implementing Republic Act. No. 4913 and from submitting to a plebiscite in the general elections to be held on November 14, 1967, the Constitutional amendments proposed in the aforementioned R.B.H. Nos. 1 and 3.
2 Dated October 30, 1967.
3 78 Phil. 1.
4 63 Phil. 139, 157.
5 Supra.
6 81 Phil. 818.
7 L-2851, March 4 and 14, 1949.
8 L-10520, February 28, 1957.
9 L-18684, September 14, 1961.
10 Section 1, Art. VI, Constitution of the Philippines.
11 Section 1, Art. II, Constitution of the Philippines.
12 Section 1, Art. XV, Constitution of the Philippines.
13 Of amending the Constitution.
14 And, inferentially, to lower courts.
15 Sec. 2(1), Art. VIII of the Constitution.
16 Supra.
17 Approved, June 17, 1961.
18 Macias vs. Commission on Elections, supra.
19 Under the original Constitution providing for a unicameral legislative body, whose members were chosen for a term of three (3) years (Section 1, Art. VI, of the Original Constitution).
20 Section 1, Article IX of the Constitution.
21 Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. p. 192; Nacionalista Party vs. De Vera, 85 Phil., 126; Codilla vs. Martinez, L14569, November 23, 1960. See, also, State vs. Carrol, 38 Conn. 499; Wilcox vs. Smith, 5 Wendell [N.Y.] 231; 21 Am. Dec., 213; Sheenan's Case, 122 Mass., 445; 23 Am. Rep., 323.
22 Torres vs. Ribo, 81 Phil. 50.
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23 Nacionalista Party vs. De Vera, supra.
24 People vs. Rogelio Gabitanan, 43 O.G. 3211.
25 53 Phil. 866.
26 50 Am. Jur., Sec. 282, pp. 267-268, citing Heckathorn v. Heckathorn, 284 Mich. 677, 280 NW 79, citing RCL; Robson v. Cantwell, 143 SC 104, 141 SE 180, citing RCL; Geiger v. Kobilka, 26 Wash 171, 66 P 423, Am. St. Rep. 733 and many others.
BENGZON, J.P., J., concurring:
1 United States v. San Jacinto Tin Co., 125 U. S. 273.
2 Angara v. Electoral Commission, 63 Phil. 139, 1958, Justice Laurel, ponente.
FERNANDO, J., concurring:
1 103 Phil. 1051 (1957).
2 78 Phil. 1 (1947).
3 307 US 433 (1939).
4 84 Phil. 368 (1940).
5 Commonwealth Act No. 671 (1941).
6 Araneta v. Dinglasan, supra, at p. 376.
SANCHEZ, J., separate opinion:
1 The text of the law reads: "He (Senator or Member of the House of Representatives) may, however, be a Member of Constitutional Convention."
2 Emphasis supplied.
3 Ellingham vs. Dye, 99 N.E. pp. 4, 15; Emphasis supplied.
4 Elingham vs. Dye, supra, at p. 17; emphasis supplied.
================================================================================= GR No: Date: SC: En Banc
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SUIT:
ISSUES:
DISSENT:
SEPARATE OPINION:
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-35925 January 22, 1973 CHARITO PLANAS, petitioner, vs. COMMISSION ON ELECTIONS, et al., respondents.
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G.R. No. L-35929 January 22, 1973 PABLO C. SANIDAD, petitioner, vs. COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35940 January 22, 1973 GERARDO ROXAS, etc., et al. petitioners, vs. COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35941 January 22, 1973 EDDIE B. MONTECLARO, petitioner, vs. THE COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35942 January 22, 1973 SEDFREY A. ORDOEZ, et al., petitioners, vs. THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents. G.R. No. L-35948 January 22, 1973 VIDAL TAN, et al., petitioners, vs. COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35953 January 22, 1973 JOSE W. DIOKNO, et al., petitioners, vs. THE COMMISSION ON ELECTIONS, respondents. G.R. No. L-35961 January 22, 1973 JACINTO JIMENEZ, petitioner, vs. COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35965 January 22, 1973 RAUL M. GONZALES, petitioner, vs. THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-35979 January 22, 1973
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ERNESTO HIDALGO, petitioner, vs. COMMISSION ON ELECTIONS, et al., respondents. Ramon A. Gonzales for petitioner Charito Planas. Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad. Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al. Quijano and Arroyo for petitioner Eddie B. Monteclaro. Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al. Lorenzo M. Taada for petitioners Vidal Tan, et al. Francis E. Garchitorena for petitioners Jose W. Diokno, et al. Jacinto Jimenez in his own behalf. Raul M. Gonzales in his own behalf. Ernesto Hidalgo in his own behalf. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.
CONCEPCION, C.J.: On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for the
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conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof." Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L35979). In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case - G.R. No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973. Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution." In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases.
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In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia: 6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973]; 7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose "[1] The New Society; "[2] Reforms instituted under Martial Law; "[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new date given following the postponement of the plebiscite from the original date of January 15 are February 19 and March 5); "[4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.] 8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: "[1] Do you approve of the New Society? "[2] Do you approve of the reform measures under martial law? "[3] Do you think that Congress should meet again in regular session? "[4] How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today, January 5, 1973; 9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973; 10 That on January 10, 1973, it was reported that one more question would be added to the four (4) questions previously announced, and that the forms of the questions would be as follows: "[1] Do you like the New Society? "[2] Do you like the reforms under martial law? "[3] Do you like Congress again to hold sessions?
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"[4] Do you like the plebiscite to be held later? "[5] Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today, January 10, 1973; additional question emphasis.] 11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-called Citizens Assemblies: "[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? "[2] Do you approve of the new Constitution? "[3] Do you want a plebiscite to be called to ratify the new Constitution? "[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution ? "[5] If the elections would not be held, when do you want the next elections to be called? "[6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; emphasis supplied.] 12. That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof; 13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads: "COMMENTS ON QUESTION No. 1 In order to broaden the base of citizens' participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.
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If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. QUESTION No. 4 We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses. QUESTION No. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6 We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly." Attention is respectfully invited to the comments on "Question No. 3", which reads: "QUESTION No. 3 The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. This, we are afraid, and therefore allege, is pregnant with ominous possibilities. 14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973]; 15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely: Do you approve of the New Constitution?" in relation to the question following it: "Do you still want a plebiscite to call to ratify the new Constitution?"
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would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending; 16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner; 17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution; 18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified; 19. That, in such a situation, the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos, because then, the people and their officials will not know which Constitution is in force. 20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition; 21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to petitioners' prayer that the proposed plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held. At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al." The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying ... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of LocaI Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion.
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In support of this prayer, it was alleged 3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion; 4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because: (a) The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to vote, whereas, the so-called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in the Election Code; (b) Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands; (c) The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so-called Citizens' Assemblies; (d) It is seriously to be doubted that, for lack of material time, more than a handful of the so-called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning: "Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday (January 8, 1973) to thresh out the mechanics in the formation of the Citizens' Assemblies and the topics for discussion," (Bulletin Today, January 16, 1973).
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It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year (Daily Express, January 1, 1971), and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organizations, it is too much to believe that such assemblies could be organized at such a short notice. 5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: (a) The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction" so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86, and the instructions incidental thereto clearly fall within the scope of this petition; (b) In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972'; and finally, (c) Petitioners prayed for such other relief which may be just and equitable. (p. 39, Petition). "Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: "a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code ... ." (Election Code of 1971, Sec. 3). 6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph
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3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom and democracy, and the petitioners herein because: (a) After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos; (b) Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court. On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor: BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;
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WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a pIebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS President of the Philippines By the President: ALEJANDRO MELCHOR Executive Secretary Such is the background of the cases submitted for Our determination. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way of affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had
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plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in the other cases under consideration. Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Member have preferred to merely concur in the opinion of one of our colleagues. What follows is my own view on these cases. The first question for Our determination is whether We have authority to pass upon the validity of Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said question is a political one. I am of the opinion on which the Members of the Court are unanimous that the contention of the Solicitor General is untenable and that the issue aforementioned is a justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of the Executive, 1 but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935 Constitution, 2 which expressly provides for the authority of this Court to review cases involving said issue. Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution. Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view that the Convention was legally free to postulate any amendment it may deem fit to propose save perhaps what is or may be inconsistent with what is now known, particularly in international law, as Jus Cogens not only because the Convention exercised sovereign powers delegated thereto by the people although insofar only as the determination of the proposals to be made and formulated by said body is concerned but, also, because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the majority of the votes cast at an election at which" " said proposals "are submitted to the people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution. As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at any time later, the proper parties may then file such action as the circumstances may justify. With respect to the question whether or not martial law per se affects the validity of a submission to the people for ratification of specific proposals for amendment of the Constitution, I consider this matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the President of the Philippines. This question has not been explicitly raised, however, in any of the cases under consideration, said cases having been filed before the issuance of such Proclamation, although
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the petitioners in L-35948 maintain that the issue on the referral of the Proposed Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental Motion of January 15, 1973. At any rate, said question has not been adequately argued by the parties in any of these cases, and it would not be proper to resolve such a transcendental question without the most thorough discussion possible under the circumstances. In fairness to the petitioners in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of dismissing the case as moot and academic, said petitioners should be given a reasonable period of time within which to move in the premises. Recapitulating the views expressed by the Members of the Court, the result is this: 1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73. 2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree. 3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention. 4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view. 5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that that issue involves question of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated. 6. On Presidential Proclamation No. 1102, the following views were expressed: a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question. b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the "purported ratification of the Proposed Constitution ... based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution," but that such unfortunate drawback notwithstanding, "considering all other related relevant circumstances, ... the new Constitution is legally recognizable and should be recognized as legitimately in force.
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c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever. d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed Constitution has been ratified by the people or not, "in the absence of any judicially discoverable and manageable standards," since the issue "poses a question of fact. 7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards Case No. L35948 as to which they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under Consideration. WHEREFORE, all of the aforementioned cases are hereby dismissed, without special pronouncement as to costs. It is so ordered. Makasiar, J., concur.
Separate Opinions
MAKALINTAL and CASTRO, JJ., concurring: The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2), and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971 Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically, although couched in different language, it is the same relief sought in the other petitions. Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the interim National Assembly, which includes, among others, "those Delegates to the (1971) Constitutional Convention who have opted to serve therein by voting affirmatively for this Article." Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
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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." And Section 12 states in part: "All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid, and binding ..." Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said plebiscite from being held that these petitions were filed. The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for which are fairly representative of the others, read as follows: I. The President of the Philippines has no power to call a plebiscite for the ratification or rejection of the 1972 Draft; neither has he the power to appropriate funds for the holding of the said plebiscite. II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation of power. And it contains provisions which were beyond the power of the convention to enact. All these have made the 1972 Draft unfit for "proper submission" to the people. III. The period of time between November 30, 1972 when the 1972 Draft was approved, and January 15, 1973, the date the plebiscite will be held, is too inadequate for the people to be informed of the contents of the 1972 Draft, and to study and discuss them so that they could thereafter intelligently cast their vote. Towards the end of December 1972 it was announced in the newspapers that the President had postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5, 1973 were mentioned. The announcement was made officially in General Order No. 20, dated January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying that the proposed Constitution had been ratified by the Citizens Assemblies created under Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become effective. In view of the foregoing developments which supervened after the petitions herein and the answers thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January 15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also premature. But of course whether the petition is moot or premature makes no material difference as far as these cases are concerned, since the announced ratification of the proposed Constitution by the Citizens Assemblies has made it unlikely that any plebiscite will be held. With respect to ground No. II we are of the opinion that the question of whether or not the proposals referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to the people for ratification has likewise become moot because of the President's Proclamation No. 1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid it should be not as mere proposals by the Convention but already as provisions of the Constitution, and certainly not in the present cases in the state in which they have been submitted for decision. There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
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This question is not within the purview of the petition and involves issues which have neither been raised nor argued herein, having arisen in a new and different setting and frame of reference, and hence may only be ventilated, if at all, in an appropriate case or at least through appropriate pleadings so that the parties may be duly heard. We therefore vote to dismiss the petitions. TEEHANKEE, J., concurring: Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his separate opinion and add the following brief comments. The Solicitor General's Office on behalf of respondents manifested as of its last comment of January 16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No. 73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos." On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) 1 are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people." 2 Under the circumstances of record from which it appears that no election (or plebiscite) for the purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose." With the result reached by the Court, and the rendering moot of the issues raised against the validity of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave constitutional question in its two aspects (a) whether the Constitutional Convention may assume the power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the Constitutional Convention may delegate such assumed power to the President absent any showing of willful default or incapacity on the part of Congress to discharge it. By the same token, it is unnecessary to resolve the equally grave question of whether certain matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections 2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to constitute the majority of an interim National Assembly and empowering such Assembly "upon special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose amendments to this Constitution (which) shall take effect when ratified in accordance with Article Sixteen hereof", which would appear to be in violation of the accepted principles governing constitutional conventions that they become functus officio upon completion of their function to formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the manner ordained in the Constitution 6 since such convention controlled interim National Assembly may continue proposing Constitutional
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amendments by mere majority vote in contrast to the regular national assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7 ANTONIO, J., concurring: The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929, L35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the supplemental petition moot and should be dismissed. Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of the Constitutional Convention to propose amendments to the Constitution is its authority to order an election at which such amendments are to be submitted to the people for ratification and, within the narrow range implied as necessary for the business of submitting the amendments to the people, the capacity to appropriate money for the expenses necessary to make such submittal effective. Independently therefore of the question, whether or not the President may legislate during martial law, it was certainly within the authority of the President to issue such measures, acting as agent for and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and appropriate money for said purpose. The opinion that the President, as agent of the Convention, could device other forms of election to determine the will of the majority of the people on the ratification of the proposed Constitution, establishes a principle that is, not entirely devoid of precedent. The present Constitution of the United States was ratified in a manner not in accord with the first Constitution of the United States, which was the Articles of Confederation. The violation was deliberate, but Madison, however defended the method provided for the adoption of the new Constitution by saying that it was a case "of absolute necessity" which forced the framers of the new Constitution to resort "to the great principle of selfpreservation; to the transcendental law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." While I agree that this precedent is never one that would justify governmental organs in ignoring constitutional restraints, the fact is the people themselves had already acted by adopting the procedure devised in the expression of their sovereign will. To the contention of one of the petitioners, that the draft of the Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that there is nothing that can legally prevent a convention from actually revising the entire Constitution for, in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision. I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant the presumption that the results of the plebiscite of ratification is not a genuine and free expression of the popular will. It poses a question of fact which, in the absence of any judicially discoverable and manageable standards, or where the access to relevant information is insufficient to assure the correct determination of the issue, I do not feel that this Court is competent to act. If the ratification of the new Constitution and the new government erected thereon, is not what it is represented to be, the expression of the will of the majority or the people are dissatisfied, they have ample remedy. The instrument itself provides amendment and change. For the only and proper way in which it should be remedied, is the people acting as a body politic. These questions relate to matters not to be settled on strict legal principles. For the new Constitution has been promulgated and great
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interests have already arisen under it. The political organ in the government has recognized it and has commenced the implementation of its provisions. Under such circumstances the Court should therefore refrain from precipitating impossible situations which might otherwise rip the delicate social and political fabric. The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the historical facts that culminated in the national referendum. The people wanted a revolutionary change. They were aware of the manifold problems of the nation its poverty, corruption, injustice, subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains of the commonweal may be conserved and further enlarged. In the ambience of such a historical setting, it would have been presumptuous to assume that the qualified voters in the reportedly more than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear. Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the people themselves. In all other respects, the opinion of Justice Barredo, merits my concurrence. ESGUERRA, J., concurring: I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December 1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain the Citizens Assemblies' referendum in connection with that ratification of said Constitution. My reasons are simple and need no elaborate and lengthy discussion. 1. In the first place, these cases have been moot and academic as the holding of the plebiscite scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated January 7, 1973. Consequently, there is nothing more to prohibit or restrain. 2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents, including three additional parties, namely Secretary Jose Rono as head of the Department of Local Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who were not duly served with summons and have never been heard, has been rendered futile as the Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers have reported to the President and on the basis thereof he has announced the ratification of said Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have been fully accomplished. I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of any evidence to overthrow the veracity of the facts therein related, there being no case formally filed with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do so would be simply tiding rough shod over the well-beaten road of due process of law which basically requires notice and full and fair hearing.
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Without any competent evidence I do not pretend to know more about the circumstances attending the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume that what the proclamation says on its face is true and until overcome by satisfactory evidence, of which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was not held accordingly. At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be resolved without raising the legality of the Government under which we are now operating as of January 17, 1973. Hence We would be confronted with a political question which is beyond the jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the manner of its ratification has been innocuous. Having been invested with full force and effect by the approval of an overwhelming majority of the people, to mount an attack against it now would be nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique literary character and I prefer to take things in the light of the stark realities of the present. I have always adhered to the idea that the practical approach to any question yields the happiest solution, instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures. FERNANDO, J., concurring and dissenting: While I am in agreement with the resolution of the Court dismissing the petitions for their being moot and academic, I feel that a brief separate opinion expressing my views on certain legal issues would not be amiss, considering the transcendental character of the suits before us. Indisputably, they involve the crucial role assumed by the Executive in the proposed submission of the new Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is reassuring that there is a reiteration of the principle that the amending process, both as to proposal and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the Solicitor-General stressed what for him is the political nature of the controversy, with considerable support from authorities on constitutional law partial to the judicial restraint approach, it would be, for me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to inquire into the validity of the steps taken towards the ratification of the proposed amendments. The most that I can concede is that where the effect of the nullification sought is to prevent the sovereign people from expressing their will, the utmost caution and circumspection should be exercised. Now, as to the merits of the issues that would have called for resolution, were it not for the matter becoming moot and academic. While not squarely raised, the question of whether or not a constitutional convention could go on meeting with martial law in force has a prejudicial aspect. Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even under such period, being not merely cherished governmental institutions but indispensable to the operation of government, there is no doubt in my mind that the same principle should likewise apply to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec, 3 "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 Once its work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated
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in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence, the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his capacity as agent of the Convention to assure that there be the submission to the people, then such an argument loses force. The Convention itself could have done so. 7 It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. That brings me to the argument as to the absence of proper submission, developed with the customary learning and persuasiveness by Senators Tanada and Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913." 9 Nonetheless, were it not for the fact that the matter had become moot and academic, I am for granting the petitions in view of what, for me, is the repugnancy between an election contemplated under Article XV of the Constitution in herein the voters can freely register their will, whether it be for approval or disapproval, and the existence of martial law, with its connotation that dissent may be fraught with unpleasant consequences. While it is to be admitted that the Administration has done its best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident to such a regime has been reduced to a minimum. I fail to see then the existence of that indispensable condition of freedom that would validate the ratification process as contemplated by the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are fundamental concepts of judicial review precludes it this state the expression of any opinion. It would, at the very least, be premature. 10
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BARREDO, J., concurring and dissenting: With full consciousness of the transcendental consequences of the action the Court is taking in these cases, not only upon me personally and as a member of the Supreme Court but upon the Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the name of God to uphold and defend, and after long and serious consideration of all aspects and angles of the issues submitted for resolution by the parties, I have come to the sincere conviction that the petitions herein should be dismissed, including the supplemental petition filed by petitioners in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of preliminary injunction or a temporary restraining order enjoining in effect any act which would imply giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice to a more extended opinion later, my reasons for this conclusion are as follows: As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions in all of these cases praying for a writ of prohibition against the implementation of Presidential Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the said Constitution would be proposed by the Citizens Assemblies, established under Presidential Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to such ratification, should it be proclaimed, which, by the way, everybody knows was already done at about 11:00 o'clock A.M. on January 17, 1973. As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the alleged grounds thereof are either untenable or have been premature, if not somehow moot and academic, at least, meanwhile that the plebiscite had not been reset. 1 (a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v. Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose. (b) On the other hand, I am of the considered view that it is not within the competence of this Court to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the Convention. The Convention was called for the purpose of proposing amendments to the Constitution, and like any Constitutional Convention it was completely and absolutely free to make any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires proposals advanced by petitioners is to me without sufficient legal basis. (c) Much less can I accept the view that the Convention's task was limited to proposing specific amendments to become either as new parts of the existing Constitution or as replacements of corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in this regard, I feel safe in saying that when the people elected the delegates to the Convention and when the delegates themselves were campaigning such limitation of the scope of their function and objective was not in their minds. Withal, considering the number and nature of the proposals already being publicly discussed before and after said election, to follow petitioners' suggestion would have produced confusion and probably insurmountable difficulties even in the framing and phrasing alone of the amendments so that they may easily and clearly jibe with the other parts of the existing Constitution.
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(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No. 73, I maintain that independently of the issue of whether or not the President may legislate during martial law relative to matters not connected with the requirements of suppressing the armed insurgency and the maintenance of peace and order, it was within the prerogative of the President to issue said decree, considering that in doing so he merely acted as agent for and on behalf of the Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972, delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules requiring the laying down of standards in the delegation of legislative functions binding Congress do not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of legislative authority than Congress in matters related to the accomplishment of its objectives, it follows that Presidential Decree No. 73 was validly issued. (e) All the other objections to said decree were rendered premature, if not somehow moot and academic for the time being, because under General Order No. 20, dated January 7, 1973, the President postponed the plebiscite until further notice. Such being the case, nobody could positively say that the President would not allow Congress to pass a plebiscite law or that he would not lift martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that are supposed to be ratified together with the Constitution itself would not be published, for the proper information of all concerned before the next date to be fixed for the plebiscite. In other words, no one could say that appropriate steps would not be taken to meet the objections alleged in the petitions before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue the factual setting whereof may still be materially altered. (f) On whether or not the holding of the plebiscite during martial law would materially affect proper submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents that this is a question of fact which cannot be pre-determined and that it would, therefore, be the burden of the petitioners to show by evidence that such freedom had been actually and substantially impaired. When one recalls that measures were taken by the President precisely to provide the widest opportunity for free debate and voting, consistent with the nature and purpose of the plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him, which measures he had to withdraw only when in his judgment he deemed it to be so required by public safety, it does not seem altogether logical to assume that the existence of martial law per se deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use an apt expression, does not carry with it necessarily all the implications thereof as these are known in other lands and in the recorded precedents. Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the Convention, the President could devise other forms of plebiscite to determine the will of the majority of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under Article X of the same Constitution, it is the Commission on Elections that is supposed to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections ..." and this function cannot be removed from the Commission whether by Congress or by the President. 2 This constitutional point seems to have been overlooked in the proceedings in the Assemblies, since it does not appear from any of the official documents relative thereto that the same have been undertaken or held under the charge of the Commission.
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Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact, the answering of the questions and the canvassing and reporting of the referendum in the Assemblies throughout the country were done exactly in the manner and form that they should have been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted, which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many places, judged on the basis of the requirements of the prevailing election laws. On the other hand, in spite of these considerations, I do not find myself in a position to deny the factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval of the proposed Constitution and would consider the same as already ratified by them. I understand that this number was determined on the basis of sworn reports of the respective heads of the Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading to the issuance of said proclamation may be deemed already cured by the apparent will of the people however imperfectly, under legal and technical standards, the same has been expressed. To grant the prayer of petitioners now would be tantamount to defying the very sovereign people by whom and for whom the Constitution has been ordained, absent any demonstrated facts showing that they prefer the status quo, which the Convention was precisely called to change meaningfully, to the wide-range reforms everybody can see are being effected in practically all levels of the government and all sectors of society. Withal, to issue any such injunctive writ at this stage of denouncement of national events is to court consequences too horrible to imagine. To the possible stricture that persons less than twenty-one years of age were allowed to participate and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution, viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may not be construed as permitting legislative enlargement of the democratic base of government authority, since the said Article does not say that those thereby qualified are the only ones who can vote - the language being simply that "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. ...," which, to me, strictly speaking, only guarantees the right of suffrage to those enumerated but does not deny to the legislature the power to include others who in its wisdom it believes should also enjoy such right. In any event, it is elementary under our election law and jurisprudence that should it appear that disqualified persons have succeeded in voting in an election, such election is not thereby necessarily rendered wholly illegal, but the votes of such persons are only correspondingly deducted after being duly identified. Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the remainder would still be substantially sufficient to constitute a recognizable mandate of the people, for under normal circumstances which must be presumed, and making the most liberal estimate, the votes of the under aged voters among them could not have been more than one-third of said number. Indeed, at the most, if this point had been considered before the issuance of Proclamation 1102, an injunction might have issued to restrain the under aged persons from participating in the referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw can be of any material consequence.
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As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation 1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us since the Convention approved the draft of the Constitution in question on November 30, 1972, and the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak for the people have precisely come to the Court challenging the legality of the procedure thus pursued as not being in consonance with the amending process specified in the 1935 Constitution and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that they came to Us with the conviction that the Court would not hesitate to play its role as the final authority designated by the Constitution itself to interpret and construe its provisions. Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948 filed a supplemental petition relative to the latest developments involving the creation of Citizens Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be issued doing away with the usual plebiscite procedure and already proclaiming the proposed Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and approval of the reports of the results of said referendum. We immediately required the respondents to answer the supplemental petition not later than January 16 and set the case for hearing on January 17 at 9:30 o'clock in the morning. In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in open session the text of Proclamation 1102 which had just been delivered by the Secretary of Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most important is for the people to know whether or not the provisions of the Constitution have been observed. Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk that responsibility by alleging technical excuses which I sincerely believe are at best of controversial tenability. I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the supplemental motion of Senator Tanada of January 15 placed those transcendental issues before Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens Assemblies and the referendum being conducted therein, and particularly in view of the two questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being bypassed and that this Court was being "short-circuited." In terms that could not have been plainer, he pointed to the impending probability of the issuance of a proclamation of the nature of Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the purported reports of the referendum so as to remove the basis for such feared eventuality. So much so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been confirmed." Others would have said, "Consummatum est!"
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Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the legal and constitutional significance of Proclamation 1102. At the very least, the present state of the case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible obligation to rule whether or not We should have enjoined the submission of the reports of the Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said reports were to be utilized as basis for the issuance of a proclamation declaring the proposed Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court and all courts in the country, I dare say, have always considered the consummation of a threatened act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its disposition, within the same proceedings, to the extent that the courts even issue mandatory injunctions, in appropriate cases, for the respondents to undo what has already been done without having to hold any further hearing. It is claimed that the parties must be fully heard but have we not heard enough from them? Has not Senator Tanada presented all his arguments in support of his supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that such possible omission be considered as a ground for Our withholding Our judgment on what under the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask for more? If at all, only the respondents have not adequately presented their side insofar as the supplemental petition is concerned, but, again, it cannot be said that they have not had the opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all the respondents, and to me, his attempt to impress the Court that the new respondents have not been summoned and that the subject petition is premised on probabilities and conjectures is of no moment, considering the grave importance of the issues and the urgent necessity of disposing them expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to leave them unresolved now would be practically inviting some non-conformists to challenge the Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the animus of the people in suspended animation fraught with anxiety, with all the dire consequences such a situation entails. Some legalists would call the government under the proclaimed Constitution a revolutionary government, but the President denies that it is, because, according to him, it is to operate under a Constitution ratified by the people. At this crucial moment in the history of the nation, We need not bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial. What is of supreme and utmost importance is that the people be told what exactly the situation is, sans the veneer of what might turn out after all to be an inaccurate appellation. The people must know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I have already explained above, in my honest opinion, the purported ratification of the Constitution attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other relevant circumstances, principally, the naked proof before Us indicating that the people approve of it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be recognized as legitimately in force. I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that 14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of this Constitution. And even if We considered that said referendum was held under the aegis of full implementation of the martial law proclaimed by the President under Proclamation 1081, as mandated by General Order No. 20, We would not be able to ignore that the government under this Constitution
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is well organized and is in stable, effective and complete control of the whole Philippine territory, and what is more pertinently important, that this Constitution purged as it is now of its Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the people, embodying as it does meaningful reforms designed to check, if not to eradicate the then prevalent causes of widespread popular restiveness and activism which has already assumed practically the proportions of an armed insurgency or rebellion somehow endangering the security and safety of the constituted government, if not the integrity of the nation. And in connection with the implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being done Philippine style may be of some relevance, since such enforcement is not characterized by the rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon these premises, it is my considered opinion that if in any sense the present government and Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be accorded legitimate standing, for all intents and purposes and for all concerned, under the universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the temptation of asking, is it juridically possible for this Court to declare unconstitutional and without force and effect the very Constitution under which it presently exists? I am inclined to hold that the answer to this question can only be in the negative. Consequently, petitioners are not entitled to any judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of January 15, 1973. In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued pursuant to the certified results of the referendum in the Citizens Assemblies all over the country favoring its adoption and enforcement. Long live our country, the Philippines! God bless our people, the Filipino people! ZALDIVAR, J., dissenting: I cannot agree with my worthy colleagues who hold the view that the petitions in all these have become moot and academic simply because the relief prayed for by petitioners cannot be granted after Proclamation No. 1102 was issued by the President of the Philippines. A case does not become moot where there remain substantial rights or issues that are controverted and which are not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2 In the present cases it is in the public interest that this Court renders a ruling on the transcendental issues brought about by the petition issues which must be resolved by this Court as the guardian of the Constitution of this Republic. For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the issues involved in these cases, We shall narrate pertinent events, as shown in the record. On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated September 21, 1972, 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 for the purpose. The Decree states that the same was issued pursuant to Resolution
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No. 5843 of the 1971 Constitutional Convention proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of the proposed Constitution, the dissemination of information regarding the proposed Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass of the returns by the city, municipality, and the municipal district board of canvassers, for the canvass by the Commission on Elections and the proclamation of the results by said Commission, for supplies and services needed for the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate rules and regulations necessary to carry out the provisions of the Decree. On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering and enjoining the Armed Forces of the Philippines and all other departments and agencies of the Government to allow and encourage public and free discussions and debates on the proposed Constitution before the plebiscite set for January 15, 1973. During the first half of the month of December 1972, the petitioners, in the ten cases now before this Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73, principally upon the ground that it is not in the power of the President of the Philippines to call a plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds for the purpose. The petitioners also maintain that the period of only about 45 days from the date of the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed regarding the provisions of the proposed Constitution, and the electorate could not therefore vote intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no proper submission of the proposed Constitution to the electorate. The petitioners further maintain that the country being under martial law there could not be a free submission of the proposed Constitution to the electorate. In some of the petitions, the petitioners also maintain that the proposed Constitution contains provisions which are beyond the power of the Constitutional Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary injunction or restraining order to prevent the respondents in each of the petitions from implementing Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the restraining order, prayed for. This Court required the respondents in each petition to answer the petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of the case for December 18, 1972. Hearings were actually held for two days on December 18 and 19, 1972. On December 31, 1972, while these cases were pending before this Court, the President of the Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the country. Among others, Decree No. 86 provides that there is created a citizen assembly in each barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila and other chartered cities where there are no barrios there shall be a citizen assembly in every ward; that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of the citizens' participation
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in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues. On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which, among others, provided for the submission to the citizens' assemblies created under Presidential Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new Constitution ?" On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows: GENERAL ORDER NO. 20 WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a plebiscite has been called on January 15, 1973 at which the proposed Constitution of the Philippines shall be submitted to the people for ratification or rejection; WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens Assemblies so as to afford ample opportunities for the citizenry to express their views on important national issues; WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you like the plebiscite on the proposed Constitution to be held later? WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's preference has been ascertained; NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice. I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of the proposed Constitution, as well as my order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and open debate on the proposed Constitution, be suspended in the meantime. Done in the City of the Manila, this 7th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS President Republic of the Philippines By the President:
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(Sgd.) ALEJANDRO MELCHOR Executive Secretary As of the day when the above-quoted General Order No. 20 was issued these cases were all pending decision before this Court. At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the Vidal Tan case may also be considered in relation with the other cases before Us. On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a number of questions, among them the following: (1) Do you approve of 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 election would not be held, when do you want the next elections to be called? (6) Do you want martial law to continue? Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "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 bypass and short-circuit this Court before which the question regarding the validity of the plebiscite scheduled for January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred to would be reported then this Honorable Court and the entire nation would be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner;" and "the fait accompli would consist in the supposed expression of the people approving the proposed Constitution." Counsel further states "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" and "that in such a situation, the Philippines would be facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and their officials would not know which Constitution is in force." 4 On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the petitioners, dated January 12, 1973.
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On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be added were the Department of Local Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental motion for the issuance of restraining order enjoining the original respondents, as well as the additional respondents, and their deputies, subordinates and/or substitutes from collecting, certifying, announcing and reporting to the President or other officials concerned, the Citizens' Assembly referendum results that would be obtained in the voting held during the period comprised between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the new Constitution?" Counsel for petitioners further alleged that for lack of material time the appropriate amended petition to include the new respondents could not be completed because the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973, but nevertheless the new respondents could properly be included because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73 but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86 (and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for the issuance of a writ of preliminary injunction restraining not only the original respondents, but also their agents from the performance of acts, implementing, or tending to implement, Presidential Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the petition is decided immediately and the respondents were restrained or enjoined from collecting, certifying, reporting, or announcing to the President the result of the alleged voting of the so-called Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the Filipino people and to the cause of freedom and democracy, because after the result of the supposed voting on the two precise questions that they mentioned shall have been announced, a conflict would arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who maintain that the old Constitution is superseded by the proposed Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction of this Court would be subject to serious attacks because the advocates of the theory that the proposed Constitution had been ratified by reason of the announcement of the results of the proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court. This Court required the Solicitor General to comment on the supplemental motion and set the said motion for hearing on January 17, 1973. On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the issuance of the restraining order and the inclusion of additional respondents were heard on oral arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing, and while counsel for the petitioners was answering questions from Members of this Court, the Chief Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said Proclamation reads as follows: PROCLAMATION NO. 1102
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ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangay (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the New Constitution should already be deemed ratified by the Filipino people; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay (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.
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FERDIN AND E. MARCO S Preside nt of the Philippi nes By the President: ALEJANDRO MELCHOR Executive Secretary And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens' Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution, had actually happened. And so, what the petitioners in all the ten cases now before Us among them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971 Constitutional Convention, and professionals had tried to prevent from happening, that is, the proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No. 73, the legality of which decree was being questioned by petitioners, had happened. The crucial question before this Court is whether or not Presidential Proclamation No. 1102 announcing the ratification of the proposed Constitution of 1972 is in accordance with the Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this Court is called upon to resolve, and it is for this reason that I believe that this case has not been moot and academic. While it is true that the relief prayed for by the petitioners, that the original respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted, Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed Constitution the very event which the petitioners had precisely sought to prevent from happening when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the political, economic and social life of the people of this country. I believe, therefore, that this Court should not indulge in the niceties of procedural technicalities and evade the task of declaring whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation No. 1102 is valid. I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation is not the matter that is squarely presented to this Court for resolution by the petitions in these cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No. 73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and making the
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writ of preliminary injunction permanent." It is not difficult to understand that the purpose of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine whether the people approve or reject the proposed Constitution. As We have adverted to, the objective of the petitioners was to prevent the ratification of the proposed constitution in a manner that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations made after the issuance of Presidential Decree No. 73, which have for their purpose either to supplement Presidential Decree No. 73 or to accomplish through other means or methods what Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the organization of the citizens' assemblies which became the forums where the question of whether to ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree No. 86-A provided for the very question which otherwise the voters would have been asked to answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter decree provided for the forum where the question was to be asked; while Presidential Decree No. 86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No. 1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or invalidate if issued. I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be considered along with all the issues raised by the petitioners in the cases at bar. More so, because said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view that this Court should not evade its duty of defining for the benefit of the people of this Republic the legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not because of any desire on my part to obstruct the workings of the agencies and instrumentalities of our Government, or to foster among the people in our country an attitude of disrespect or disloyalty towards the constituted authorities that presently run the affairs of our Government. I am only doing what I believe is my sworn duty to perform. The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads: Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines passed Resolution No. 2 calling a convention to propose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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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 which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention there was a clear mandate that the amendment proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for their ratification as provided in the Constitution. This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said: The Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and 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 coup d' etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it 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 ... xxx xxx xxx As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV . In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast
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their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected. I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of the 1935 Constitution. Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded. The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance an election is the act of casting and receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637). Election" implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). ... the statutory method whereby qualified voters or electors pass on various public matters submitted to them the election of officers, national, state, county, township the passing on various other questions submitted for their determination (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
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Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234). The right to vote may be exercised only on compliance with such statutory requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied) In this connection I herein quote the pertinent provisions of the Election Code of 1971: Sec. 2. Applicability of this Act. All elections of Public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code. Sec. 99. Necessity of registration to be entitled to vote . In order that a qualified voter may vote in any regular or special election or in any plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, That no person shall register more than once without first applying for cancellation of his previous registration. (Emphasis supplied). 3) Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388). It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the 1935 Constitution the age requirement to be a qualified voter is 21 years or over. But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether they vote for or against a proposed Constitution. The election processes as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic the will of the people must be expressed through the ballot in a manner that is provided by law. It is said that in a democracy the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands of a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of the adoption of a constitution or in the ratification of an amendment to the Constitution. The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified or not: When it is said that "the people" have the right to alter or amend the constitution, it must not be understood that this term necessarily includes all the inhabitants of the
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state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered by a vote, the determination of it rests with those who, by the existing constitution, are accorded the right of suffrage, But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated, and a new one adopted, by the whole mass of people in a state, acting through representatives not chosen by the "people" in the political sense of the term, but by the general body of the populace, the movement would be extra-legal. (Black's Constitutional Law, Second Edition, pp. 47-48). The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782). The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing). The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104). Provisions of a constitution regulating its own amendment, ... are not merely directory, but are mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-36 cited in Graham v. Jones, 3 So. 2d 761, 782).
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It is said that chaos and confusion in the governmental affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters of the joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, unless the Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions of the Constitution, those who would thereafter desire to violate it and disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs, of the State and then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794). In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not, complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election. And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must be upheld. My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice, because of the existence of martial law in our country. The same ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so, because by
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General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for the proclamation of the ratification of the proposed Constitution. It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect. During the deliberation of these cases by this Court, a suggestion was made that because of the transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases, specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in relation to their petitions. The majority of the Court, however, were not in favor of the idea. I expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in these cases may be met, and so that the validity of Proclamation No. 1102, and the question of whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this Court once and for all. At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No. 1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the officials and the citizens of this country will take note of it, and ponder over it. I am only doing my duty according to the light that God has given me.
Separate Opinions MAKALINTAL and CASTRO, JJ., concurring: The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2), and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971 Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically, although couched in different language, it is the same relief sought in the other petitions. Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the interim National Assembly, which includes, among others, "those Delegates to the (1971) Constitutional Convention who have opted to serve therein by voting affirmatively for this Article." Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
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the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid, and binding ..." Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said plebiscite from being held that these petitions were filed. The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for which are fairly representative of the others, read as follows: I. The President of the Philippines has no power to call a plebiscite for the ratification or rejection of the 1972 Draft; neither has he the power to appropriate funds for the holding of the said plebiscite. II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation of power. And it contains provisions which were beyond the power of the convention to enact. All these have made the 1972 Draft unfit for "proper submission" to the people. III. The period of time between November 30, 1972 when the 1972 Draft was approved, and January 15, 1973, the date the plebiscite will be held, is too inadequate for the people to be informed of the contents of the 1972 Draft, and to study and discuss them so that they could thereafter intelligently cast their vote. Towards the end of December 1972 it was announced in the newspapers that the President had postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5, 1973 were mentioned. The announcement was made officially in General Order No. 20, dated January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying that the proposed Constitution had been ratified by the Citizens Assemblies created under Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become effective. In view of the foregoing developments which supervened after the petitions herein and the answers thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January 15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also premature. But of course whether the petition is moot or premature makes no material difference as far as these cases are concerned, since the announced ratification of the proposed Constitution by the Citizens Assemblies has made it unlikely that any plebiscite will be held. With respect to ground No. II we are of the opinion that the question of whether or not the proposals referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to the people for ratification has likewise become moot because of the President's Proclamation No. 1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid it should be not as mere proposals by the Convention but already as provisions of the Constitution, and certainly not in the present cases in the state in which they have been submitted for decision. There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral argument on his urgent motion for early decision to question the validity of Proclamation No. 1102. This question is not within the purview of the petition and involves issues which have neither been
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raised nor argued herein, having arisen in a new and different setting and frame of reference, and hence may only be ventilated, if at all, in an appropriate case or at least through appropriate pleadings so that the parties may be duly heard. We therefore vote to dismiss the petitions. TEEHANKEE, J., concurring: Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his separate opinion and add the following brief comments. The Solicitor General's Office on behalf of respondents manifested as of its last comment of January 16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No. 73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos." On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) 1 are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people." 2 Under the circumstances of record from which it appears that no election (or plebiscite) for the purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose." With the result reached by the Court, and the rendering moot of the issues raised against the validity of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave constitutional question in its two aspects (a) whether the Constitutional Convention may assume the power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the Constitutional Convention may delegate such assumed power to the President absent any showing of willful default or incapacity on the part of Congress to discharge it. By the same token, it is unnecessary to resolve the equally grave question of whether certain matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections 2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to constitute the majority of an interim National Assembly and empowering such Assembly "upon special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose amendments to this Constitution (which) shall take effect when ratified in accordance with Article Sixteen hereof", which would appear to be in violation of the accepted principles governing constitutional conventions that they become functus officio upon completion of their function to formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the manner ordained in the Constitution 6 since such convention controlled interim National Assembly may continue proposing Constitutional
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amendments by mere majority vote in contrast to the regular national assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7 ANTONIO, J., concurring: The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929, L35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the supplemental petition moot and should be dismissed. Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of the Constitutional Convention to propose amendments to the Constitution is its authority to order an election at which such amendments are to be submitted to the people for ratification and, within the narrow range implied as necessary for the business of submitting the amendments to the people, the capacity to appropriate money for the expenses necessary to make such submittal effective. Independently therefore of the question, whether or not the President may legislate during martial law, it was certainly within the authority of the President to issue such measures, acting as agent for and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and appropriate money for said purpose. The opinion that the President, as agent of the Convention, could device other forms of election to determine the will of the majority of the people on the ratification of the proposed Constitution, establishes a principle that is, not entirely devoid of precedent. The present Constitution of the United States was ratified in a manner not in accord with the first Constitution of the United States, which was the Articles of Confederation. The violation was deliberate, but Madison, however defended the method provided for the adoption of the new Constitution by saying that it was a case "of absolute necessity" which forced the framers of the new Constitution to resort "to the great principle of selfpreservation; to the transcendental law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." While I agree that this precedent is never one that would justify governmental organs in ignoring constitutional restraints, the fact is the people themselves had already acted by adopting the procedure devised in the expression of their sovereign will. To the contention of one of the petitioners, that the draft of the Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that there is nothing that can legally prevent a convention from actually revising the entire Constitution for, in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision. I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant the presumption that the results of the plebiscite of ratification is not a genuine and free expression of the popular will. It poses a question of fact which, in the absence of any judicially discoverable and manageable standards, or where the access to relevant information is insufficient to assure the correct determination of the issue, I do not feel that this Court is competent to act. If the ratification of the new Constitution and the new government erected thereon, is not what it is represented to be, the expression of the will of the majority or the people are dissatisfied, they have ample remedy. The instrument itself provides amendment and change. For the only and proper way in which it should be remedied, is the people acting as a body politic. These questions relate to matters not to be settled on strict legal principles. For the new Constitution has been promulgated and great
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interests have already arisen under it. The political organ in the government has recognized it and has commenced the implementation of its provisions. Under such circumstances the Court should therefore refrain from precipitating impossible situations which might otherwise rip the delicate social and political fabric. The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the historical facts that culminated in the national referendum. The people wanted a revolutionary change. They were aware of the manifold problems of the nation its poverty, corruption, injustice, subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains of the commonweal may be conserved and further enlarged. In the ambience of such a historical setting, it would have been presumptuous to assume that the qualified voters in the reportedly more than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear. Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the people themselves. In all other respects, the opinion of Justice Barredo, merits my concurrence. ESGUERRA, J., concurring: I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December 1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain the Citizens Assemblies' referendum in connection with that ratification of said Constitution. My reasons are simple and need no elaborate and lengthy discussion. 1. In the first place, these cases have been moot and academic as the holding of the plebiscite scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated January 7, 1973. Consequently, there is nothing more to prohibit or restrain. 2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents, including three additional parties, namely Secretary Jose Rono as head of the Department of Local Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who were not duly served with summons and have never been heard, has been rendered futile as the Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers have reported to the President and on the basis thereof he has announced the ratification of said Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have been fully accomplished. I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of any evidence to overthrow the veracity of the facts therein related, there being no case formally filed with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do so would be simply tiding rough shod over the well-beaten road of due process of law which basically requires notice and full and fair hearing.
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Without any competent evidence I do not pretend to know more about the circumstances attending the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume that what the proclamation says on its face is true and until overcome by satisfactory evidence, of which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was not held accordingly. At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be resolved without raising the legality of the Government under which we are now operating as of January 17, 1973. Hence We would be confronted with a political question which is beyond the jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the manner of its ratification has been innocuous. Having been invested with full force and effect by the approval of an overwhelming majority of the people, to mount an attack against it now would be nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique literary character and I prefer to take things in the light of the stark realities of the present. I have always adhered to the idea that the practical approach to any question yields the happiest solution, instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures. FERNANDO, J., concurring and dissenting: While I am in agreement with the resolution of the Court dismissing the petitions for their being moot and academic, I feel that a brief separate opinion expressing my views on certain legal issues would not be amiss, considering the transcendental character of the suits before us. Indisputably, they involve the crucial role assumed by the Executive in the proposed submission of the new Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is reassuring that there is a reiteration of the principle that the amending process, both as to proposal and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the Solicitor-General stressed what for him is the political nature of the controversy, with considerable support from authorities on constitutional law partial to the judicial restraint approach, it would be, for me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to inquire into the validity of the steps taken towards the ratification of the proposed amendments. The most that I can concede is that where the effect of the nullification sought is to prevent the sovereign people from expressing their will, the utmost caution and circumspection should be exercised. Now, as to the merits of the issues that would have called for resolution, were it not for the matter becoming moot and academic. While not squarely raised, the question of whether or not a constitutional convention could go on meeting with martial law in force has a prejudicial aspect. Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even under such period, being not merely cherished governmental institutions but indispensable to the operation of government, there is no doubt in my mind that the same principle should likewise apply to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec, 3 "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 Once its work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated
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in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence, the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his capacity as agent of the Convention to assure that there be the submission to the people, then such an argument loses force. The Convention itself could have done so. 7 It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. That brings me to the argument as to the absence of proper submission, developed with the customary learning and persuasiveness by Senators Tanada and Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913." 9 Nonetheless, were it not for the fact that the matter had become moot and academic, I am for granting the petitions in view of what, for me, is the repugnancy between an election contemplated under Article XV of the Constitution in herein the voters can freely register their will, whether it be for approval or disapproval, and the existence of martial law, with its connotation that dissent may be fraught with unpleasant consequences. While it is to be admitted that the Administration has done its best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident to such a regime has been reduced to a minimum. I fail to see then the existence of that indispensable condition of freedom that would validate the ratification process as contemplated by the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are fundamental concepts of judicial review precludes it this state the expression of any opinion. It would, at the very least, be premature. 10
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BARREDO, J., concurring and dissenting: With full consciousness of the transcendental consequences of the action the Court is taking in these cases, not only upon me personally and as a member of the Supreme Court but upon the Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the name of God to uphold and defend, and after long and serious consideration of all aspects and angles of the issues submitted for resolution by the parties, I have come to the sincere conviction that the petitions herein should be dismissed, including the supplemental petition filed by petitioners in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of preliminary injunction or a temporary restraining order enjoining in effect any act which would imply giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice to a more extended opinion later, my reasons for this conclusion are as follows: As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions in all of these cases praying for a writ of prohibition against the implementation of Presidential Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the said Constitution would be proposed by the Citizens Assemblies, established under Presidential Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to such ratification, should it be proclaimed, which, by the way, everybody knows was already done at about 11:00 o'clock A.M. on January 17, 1973. As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the alleged grounds thereof are either untenable or have been premature, if not somehow moot and academic, at least, meanwhile that the plebiscite had not been reset. 1 (a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v. Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose. (b) On the other hand, I am of the considered view that it is not within the competence of this Court to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the Convention. The Convention was called for the purpose of proposing amendments to the Constitution, and like any Constitutional Convention it was completely and absolutely free to make any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires proposals advanced by petitioners is to me without sufficient legal basis. (c) Much less can I accept the view that the Convention's task was limited to proposing specific amendments to become either as new parts of the existing Constitution or as replacements of corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in this regard, I feel safe in saying that when the people elected the delegates to the Convention and when the delegates themselves were campaigning such limitation of the scope of their function and objective was not in their minds. Withal, considering the number and nature of the proposals already being publicly discussed before and after said election, to follow petitioners' suggestion would have produced confusion and probably insurmountable difficulties even in the framing and phrasing alone of the amendments so that they may easily and clearly jibe with the other parts of the existing Constitution.
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(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No. 73, I maintain that independently of the issue of whether or not the President may legislate during martial law relative to matters not connected with the requirements of suppressing the armed insurgency and the maintenance of peace and order, it was within the prerogative of the President to issue said decree, considering that in doing so he merely acted as agent for and on behalf of the Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972, delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules requiring the laying down of standards in the delegation of legislative functions binding Congress do not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of legislative authority than Congress in matters related to the accomplishment of its objectives, it follows that Presidential Decree No. 73 was validly issued. (e) All the other objections to said decree were rendered premature, if not somehow moot and academic for the time being, because under General Order No. 20, dated January 7, 1973, the President postponed the plebiscite until further notice. Such being the case, nobody could positively say that the President would not allow Congress to pass a plebiscite law or that he would not lift martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that are supposed to be ratified together with the Constitution itself would not be published, for the proper information of all concerned before the next date to be fixed for the plebiscite. In other words, no one could say that appropriate steps would not be taken to meet the objections alleged in the petitions before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue the factual setting whereof may still be materially altered. (f) On whether or not the holding of the plebiscite during martial law would materially affect proper submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents that this is a question of fact which cannot be pre-determined and that it would, therefore, be the burden of the petitioners to show by evidence that such freedom had been actually and substantially impaired. When one recalls that measures were taken by the President precisely to provide the widest opportunity for free debate and voting, consistent with the nature and purpose of the plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him, which measures he had to withdraw only when in his judgment he deemed it to be so required by public safety, it does not seem altogether logical to assume that the existence of martial law per se deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use an apt expression, does not carry with it necessarily all the implications thereof as these are known in other lands and in the recorded precedents. Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the Convention, the President could devise other forms of plebiscite to determine the will of the majority of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under Article X of the same Constitution, it is the Commission on Elections that is supposed to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections ..." and this function cannot be removed from the Commission whether by Congress or by the President. 2 This constitutional point seems to have been overlooked in the proceedings in the Assemblies, since it does not appear from any of the official documents relative thereto that the same have been undertaken or held under the charge of the Commission.
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Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact, the answering of the questions and the canvassing and reporting of the referendum in the Assemblies throughout the country were done exactly in the manner and form that they should have been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted, which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many places, judged on the basis of the requirements of the prevailing election laws. On the other hand, in spite of these considerations, I do not find myself in a position to deny the factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval of the proposed Constitution and would consider the same as already ratified by them. I understand that this number was determined on the basis of sworn reports of the respective heads of the Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading to the issuance of said proclamation may be deemed already cured by the apparent will of the people however imperfectly, under legal and technical standards, the same has been expressed. To grant the prayer of petitioners now would be tantamount to defying the very sovereign people by whom and for whom the Constitution has been ordained, absent any demonstrated facts showing that they prefer the status quo, which the Convention was precisely called to change meaningfully, to the wide-range reforms everybody can see are being effected in practically all levels of the government and all sectors of society. Withal, to issue any such injunctive writ at this stage of denouncement of national events is to court consequences too horrible to imagine. To the possible stricture that persons less than twenty-one years of age were allowed to participate and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution, viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may not be construed as permitting legislative enlargement of the democratic base of government authority, since the said Article does not say that those thereby qualified are the only ones who can vote - the language being simply that "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. ...," which, to me, strictly speaking, only guarantees the right of suffrage to those enumerated but does not deny to the legislature the power to include others who in its wisdom it believes should also enjoy such right. In any event, it is elementary under our election law and jurisprudence that should it appear that disqualified persons have succeeded in voting in an election, such election is not thereby necessarily rendered wholly illegal, but the votes of such persons are only correspondingly deducted after being duly identified. Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the remainder would still be substantially sufficient to constitute a recognizable mandate of the people, for under normal circumstances which must be presumed, and making the most liberal estimate, the votes of the under aged voters among them could not have been more than one-third of said number. Indeed, at the most, if this point had been considered before the issuance of Proclamation 1102, an injunction might have issued to restrain the under aged persons from participating in the referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw can be of any material consequence.
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As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation 1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us since the Convention approved the draft of the Constitution in question on November 30, 1972, and the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak for the people have precisely come to the Court challenging the legality of the procedure thus pursued as not being in consonance with the amending process specified in the 1935 Constitution and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that they came to Us with the conviction that the Court would not hesitate to play its role as the final authority designated by the Constitution itself to interpret and construe its provisions. Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948 filed a supplemental petition relative to the latest developments involving the creation of Citizens Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be issued doing away with the usual plebiscite procedure and already proclaiming the proposed Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and approval of the reports of the results of said referendum. We immediately required the respondents to answer the supplemental petition not later than January 16 and set the case for hearing on January 17 at 9:30 o'clock in the morning. In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in open session the text of Proclamation 1102 which had just been delivered by the Secretary of Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most important is for the people to know whether or not the provisions of the Constitution have been observed. Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk that responsibility by alleging technical excuses which I sincerely believe are at best of controversial tenability. I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the supplemental motion of Senator Tanada of January 15 placed those transcendental issues before Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens Assemblies and the referendum being conducted therein, and particularly in view of the two questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being bypassed and that this Court was being "short-circuited." In terms that could not have been plainer, he pointed to the impending probability of the issuance of a proclamation of the nature of Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the purported reports of the referendum so as to remove the basis for such feared eventuality. So much so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been confirmed." Others would have said, "Consummatum est!"
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Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the legal and constitutional significance of Proclamation 1102. At the very least, the present state of the case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible obligation to rule whether or not We should have enjoined the submission of the reports of the Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said reports were to be utilized as basis for the issuance of a proclamation declaring the proposed Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court and all courts in the country, I dare say, have always considered the consummation of a threatened act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its disposition, within the same proceedings, to the extent that the courts even issue mandatory injunctions, in appropriate cases, for the respondents to undo what has already been done without having to hold any further hearing. It is claimed that the parties must be fully heard but have we not heard enough from them? Has not Senator Tanada presented all his arguments in support of his supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that such possible omission be considered as a ground for Our withholding Our judgment on what under the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask for more? If at all, only the respondents have not adequately presented their side insofar as the supplemental petition is concerned, but, again, it cannot be said that they have not had the opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all the respondents, and to me, his attempt to impress the Court that the new respondents have not been summoned and that the subject petition is premised on probabilities and conjectures is of no moment, considering the grave importance of the issues and the urgent necessity of disposing them expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to leave them unresolved now would be practically inviting some non-conformists to challenge the Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the animus of the people in suspended animation fraught with anxiety, with all the dire consequences such a situation entails. Some legalists would call the government under the proclaimed Constitution a revolutionary government, but the President denies that it is, because, according to him, it is to operate under a Constitution ratified by the people. At this crucial moment in the history of the nation, We need not bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial. What is of supreme and utmost importance is that the people be told what exactly the situation is, sans the veneer of what might turn out after all to be an inaccurate appellation. The people must know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I have already explained above, in my honest opinion, the purported ratification of the Constitution attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other relevant circumstances, principally, the naked proof before Us indicating that the people approve of it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be recognized as legitimately in force. I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that 14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of this Constitution. And even if We considered that said referendum was held under the aegis of full implementation of the martial law proclaimed by the President under Proclamation 1081, as mandated by General Order No. 20, We would not be able to ignore that the government under this Constitution
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is well organized and is in stable, effective and complete control of the whole Philippine territory, and what is more pertinently important, that this Constitution purged as it is now of its Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the people, embodying as it does meaningful reforms designed to check, if not to eradicate the then prevalent causes of widespread popular restiveness and activism which has already assumed practically the proportions of an armed insurgency or rebellion somehow endangering the security and safety of the constituted government, if not the integrity of the nation. And in connection with the implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being done Philippine style may be of some relevance, since such enforcement is not characterized by the rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon these premises, it is my considered opinion that if in any sense the present government and Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be accorded legitimate standing, for all intents and purposes and for all concerned, under the universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the temptation of asking, is it juridically possible for this Court to declare unconstitutional and without force and effect the very Constitution under which it presently exists? I am inclined to hold that the answer to this question can only be in the negative. Consequently, petitioners are not entitled to any judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of January 15, 1973. In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued pursuant to the certified results of the referendum in the Citizens Assemblies all over the country favoring its adoption and enforcement. Long live our country, the Philippines! God bless our people, the Filipino people! ZALDIVAR, J., dissenting: I cannot agree with my worthy colleagues who hold the view that the petitions in all these have become moot and academic simply because the relief prayed for by petitioners cannot be granted after Proclamation No. 1102 was issued by the President of the Philippines. A case does not become moot where there remain substantial rights or issues that are controverted and which are not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2 In the present cases it is in the public interest that this Court renders a ruling on the transcendental issues brought about by the petition issues which must be resolved by this Court as the guardian of the Constitution of this Republic. For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the issues involved in these cases, We shall narrate pertinent events, as shown in the record. On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated September 21, 1972, 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 for the purpose. The Decree states that the same was issued pursuant to Resolution
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No. 5843 of the 1971 Constitutional Convention proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of the proposed Constitution, the dissemination of information regarding the proposed Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass of the returns by the city, municipality, and the municipal district board of canvassers, for the canvass by the Commission on Elections and the proclamation of the results by said Commission, for supplies and services needed for the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate rules and regulations necessary to carry out the provisions of the Decree. On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering and enjoining the Armed Forces of the Philippines and all other departments and agencies of the Government to allow and encourage public and free discussions and debates on the proposed Constitution before the plebiscite set for January 15, 1973. During the first half of the month of December 1972, the petitioners, in the ten cases now before this Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73, principally upon the ground that it is not in the power of the President of the Philippines to call a plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds for the purpose. The petitioners also maintain that the period of only about 45 days from the date of the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed regarding the provisions of the proposed Constitution, and the electorate could not therefore vote intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no proper submission of the proposed Constitution to the electorate. The petitioners further maintain that the country being under martial law there could not be a free submission of the proposed Constitution to the electorate. In some of the petitions, the petitioners also maintain that the proposed Constitution contains provisions which are beyond the power of the Constitutional Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary injunction or restraining order to prevent the respondents in each of the petitions from implementing Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the restraining order, prayed for. This Court required the respondents in each petition to answer the petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of the case for December 18, 1972. Hearings were actually held for two days on December 18 and 19, 1972. On December 31, 1972, while these cases were pending before this Court, the President of the Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the country. Among others, Decree No. 86 provides that there is created a citizen assembly in each barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila and other chartered cities where there are no barrios there shall be a citizen assembly in every ward; that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of the citizens' participation
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in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues. On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which, among others, provided for the submission to the citizens' assemblies created under Presidential Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new Constitution ?" On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows: GENERAL ORDER NO. 20 WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a plebiscite has been called on January 15, 1973 at which the proposed Constitution of the Philippines shall be submitted to the people for ratification or rejection; WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens Assemblies so as to afford ample opportunities for the citizenry to express their views on important national issues; WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you like the plebiscite on the proposed Constitution to be held later? WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's preference has been ascertained; NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice. I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of the proposed Constitution, as well as my order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and open debate on the proposed Constitution, be suspended in the meantime. Done in the City of the Manila, this 7th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS President Republic of the Philippines By the President:
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(Sgd.) ALEJANDRO MELCHOR Executive Secretary As of the day when the above-quoted General Order No. 20 was issued these cases were all pending decision before this Court. At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the Vidal Tan case may also be considered in relation with the other cases before Us. On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a number of questions, among them the following: (1) Do you approve of 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 election would not be held, when do you want the next elections to be called? (6) Do you want martial law to continue? Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "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 bypass and short-circuit this Court before which the question regarding the validity of the plebiscite scheduled for January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred to would be reported then this Honorable Court and the entire nation would be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner;" and "the fait accompli would consist in the supposed expression of the people approving the proposed Constitution." Counsel further states "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" and "that in such a situation, the Philippines would be facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and their officials would not know which Constitution is in force." 4 On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the petitioners, dated January 12, 1973.
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On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be added were the Department of Local Governments and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental motion for the issuance of restraining order enjoining the original respondents, as well as the additional respondents, and their deputies, subordinates and/or substitutes from collecting, certifying, announcing and reporting to the President or other officials concerned, the Citizens' Assembly referendum results that would be obtained in the voting held during the period comprised between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the new Constitution?" Counsel for petitioners further alleged that for lack of material time the appropriate amended petition to include the new respondents could not be completed because the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973, but nevertheless the new respondents could properly be included because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73 but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86 (and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for the issuance of a writ of preliminary injunction restraining not only the original respondents, but also their agents from the performance of acts, implementing, or tending to implement, Presidential Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the petition is decided immediately and the respondents were restrained or enjoined from collecting, certifying, reporting, or announcing to the President the result of the alleged voting of the so-called Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the Filipino people and to the cause of freedom and democracy, because after the result of the supposed voting on the two precise questions that they mentioned shall have been announced, a conflict would arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who maintain that the old Constitution is superseded by the proposed Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction of this Court would be subject to serious attacks because the advocates of the theory that the proposed Constitution had been ratified by reason of the announcement of the results of the proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court. This Court required the Solicitor General to comment on the supplemental motion and set the said motion for hearing on January 17, 1973. On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the issuance of the restraining order and the inclusion of additional respondents were heard on oral arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing, and while counsel for the petitioners was answering questions from Members of this Court, the Chief Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said Proclamation reads as follows: PROCLAMATION NO. 1102
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ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangay (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the New Constitution should already be deemed ratified by the Filipino people; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay (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.
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FERDIN AND E. MARCO S Preside nt of the Philippi nes By the President: ALEJANDRO MELCHOR Executive Secretary And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens' Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution, had actually happened. And so, what the petitioners in all the ten cases now before Us among them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971 Constitutional Convention, and professionals had tried to prevent from happening, that is, the proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No. 73, the legality of which decree was being questioned by petitioners, had happened. The crucial question before this Court is whether or not Presidential Proclamation No. 1102 announcing the ratification of the proposed Constitution of 1972 is in accordance with the Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this Court is called upon to resolve, and it is for this reason that I believe that this case has not been moot and academic. While it is true that the relief prayed for by the petitioners, that the original respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted, Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed Constitution the very event which the petitioners had precisely sought to prevent from happening when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the political, economic and social life of the people of this country. I believe, therefore, that this Court should not indulge in the niceties of procedural technicalities and evade the task of declaring whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation No. 1102 is valid. I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation is not the matter that is squarely presented to this Court for resolution by the petitions in these cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No. 73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and making the
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writ of preliminary injunction permanent." It is not difficult to understand that the purpose of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine whether the people approve or reject the proposed Constitution. As We have adverted to, the objective of the petitioners was to prevent the ratification of the proposed constitution in a manner that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations made after the issuance of Presidential Decree No. 73, which have for their purpose either to supplement Presidential Decree No. 73 or to accomplish through other means or methods what Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the organization of the citizens' assemblies which became the forums where the question of whether to ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree No. 86-A provided for the very question which otherwise the voters would have been asked to answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter decree provided for the forum where the question was to be asked; while Presidential Decree No. 86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No. 1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or invalidate if issued. I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be considered along with all the issues raised by the petitioners in the cases at bar. More so, because said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view that this Court should not evade its duty of defining for the benefit of the people of this Republic the legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not because of any desire on my part to obstruct the workings of the agencies and instrumentalities of our Government, or to foster among the people in our country an attitude of disrespect or disloyalty towards the constituted authorities that presently run the affairs of our Government. I am only doing what I believe is my sworn duty to perform. The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads: Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines passed Resolution No. 2 calling a convention to propose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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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 which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention there was a clear mandate that the amendment proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for their ratification as provided in the Constitution. This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said: The Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and 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 coup d' etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it 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 ... xxx xxx xxx As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV . In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast
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their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected. I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of the 1935 Constitution. Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded. The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance an election is the act of casting and receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637). Election" implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). ... the statutory method whereby qualified voters or electors pass on various public matters submitted to them the election of officers, national, state, county, township the passing on various other questions submitted for their determination (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
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Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234). The right to vote may be exercised only on compliance with such statutory requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied) In this connection I herein quote the pertinent provisions of the Election Code of 1971: Sec. 2. Applicability of this Act. All elections of Public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code. Sec. 99. Necessity of registration to be entitled to vote . In order that a qualified voter may vote in any regular or special election or in any plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, That no person shall register more than once without first applying for cancellation of his previous registration. (Emphasis supplied). 3) Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388). It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the 1935 Constitution the age requirement to be a qualified voter is 21 years or over. But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether they vote for or against a proposed Constitution. The election processes as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic the will of the people must be expressed through the ballot in a manner that is provided by law. It is said that in a democracy the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands of a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of the adoption of a constitution or in the ratification of an amendment to the Constitution. The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified or not: When it is said that "the people" have the right to alter or amend the constitution, it must not be understood that this term necessarily includes all the inhabitants of the
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state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered by a vote, the determination of it rests with those who, by the existing constitution, are accorded the right of suffrage, But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated, and a new one adopted, by the whole mass of people in a state, acting through representatives not chosen by the "people" in the political sense of the term, but by the general body of the populace, the movement would be extra-legal. (Black's Constitutional Law, Second Edition, pp. 47-48). The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782). The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing). The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104). Provisions of a constitution regulating its own amendment, ... are not merely directory, but are mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-36 cited in Graham v. Jones, 3 So. 2d 761, 782).
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It is said that chaos and confusion in the governmental affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters of the joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, unless the Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions of the Constitution, those who would thereafter desire to violate it and disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs, of the State and then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794). In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not, complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election. And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must be upheld. My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice, because of the existence of martial law in our country. The same ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so, because by
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General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for the proclamation of the ratification of the proposed Constitution. It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect. During the deliberation of these cases by this Court, a suggestion was made that because of the transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases, specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in relation to their petitions. The majority of the Court, however, were not in favor of the idea. I expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in these cases may be met, and so that the validity of Proclamation No. 1102, and the question of whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this Court once and for all. At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No. 1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the officials and the citizens of this country will take note of it, and ponder over it. I am only doing my duty according to the light that God has given me. Footnotes Concepcion, C.J. concurring: 1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al., L35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et
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al., L-15693, July 31, 1961; Pascual v. Secretary of Public Works and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322. 2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of Section 5, Article X thereof]. Teehankee, J., concurring: 1 Such Citizens Assemblies, as stated in the proclamation, 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." (2nd whereas clause) 2 6th whereas clause. 3 The conduct of such elections (or plebiscite) is, under Article X of the Constitution, entrusted to the Commission on Elections which has "exclusive charge" (See Justice Barredo's separate opinion, p. 7). Under Article V of the Constitution, the right of suffrage is limited to qualified and duly registered voters, "who are 21 years of age or over and are able to read and write." Tolentino vs. Comelec, infra, in denying reconsideration, prohibited the submittal in an advance election of the Con-Cons Organic Res. No. 1 proposing to lower the voting age to 18, as a piece-meal and incomplete amendment and rejected the contention "that the end sought to be achieved is to be desired." As per Barredo, J., "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 be actually in force." 4 Article VI, sec. 23, par. 2 of the Constitution, provides that "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 5 Cf. Tolentino vs. Comelec, L-34150, Oct. 16, 1971 and Resolution on motion for reconsideration with concurring opinions. Nov. 4, 1971. 6 See text, Presidential Decree No. 73. 7 Article XVI, sec. 1, par. 1 of the proposed Constitution. Barredo, J., concurring and dissenting: 1 It was agreed in the deliberations that the validity of Presidential Decree No. 73 would be passed upon as if Proclamation 1102 did not exist, and afterwards, for those who would like to express their views on the matter, the validity of Proclamation 1102 itself, hence the tenses and moods in this discussion.
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2 Under the Constitution of 1935, both Article X and Article XV use the same word "election", hence, the plebiscite contemplated in the latter Article must be deemed to be intended to be included among the elections placed under the charge of the Commission, irrespective of the form to be employed therein. Fernando, J., concurring and dissenting: 1 327 US 304 (1946). 2 Ex parte Kerby 205 P. 279 (1922). 3 L-32476, Oct. 20, 1970, 35 SCRA 367. 4 Ibid, 369. 5 Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 (1883); Hatch v. Stoneman, 6 P. 734, 66 Cal. 632 (1885); Macmillan v. Blattner 25 NW 245, 67 Iowa 287 (1895); State v. Powell, 27 So 297, 77 Miss. 543 (1900); Hammond v. Clark, 71 SE 479, 136 Ga. 313 (1911); State v. Hall, 171 NW 213, 44 ND 459 (1919); Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 (1920) ; State v. Smith, 138 NE 881, 105 Ohio St. 570 (1922): Looney v. Leeper, 292 P. 365, 145 Okl. 202 (1930); School District v. City of Pontiac, 247 NW 474, 262 Mich. 338 (1933). 6 According to Art. VI, Sec. 23. par. 2 of the Constitution: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 7 Cf. Hutcheson v. Gonzales, 71 P. 2d 140 (1937) : State Smith, 184 SW 2d 598 (1945). 8 L-28196 and 28224, November 9, 1967, 21 SCRA 774. 9 Ibid, 801-802. 10 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil. 56 (1937); Planas v. Gil, 67 Phil. 62 (1939): Tan v. Macapagal, L-24161, Feb. 29, 1972, 43 SCRA 677. Zaldivar, J., dissenting: 1 Reserve Lite Ins. Co., Dallas, Tex. v. Franfather, 225 P. 2d 1035, 1036, 123 Colo. 77, 39 A.L.R. 2d 146; Appeal of Frank Foundries Corporation, 56 N.E. 2d 649, 652, 653, 323, III. App. 594 in 27A Words and Phrases, p. 145. 2 Krivenko vs. Register of Deeds, 79 Phil. 461; Philippine Association of Colleges and Universities vs. Secretary of Education, 97 Phil. 806; Hebron vs. Reyes, 104 Phil. 175. 3 Annex 1 of the Answer of the Respondents in L-35948 shows the resolution of the Constitutional Convention of November 22, 1972, proposing to President Marcos that a decree be issued calling for a plebiscite is Resolution No. 29. "Resolution No. 5843" is as stated in Presidential Decree No. 73.
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4 Words within quotation marks in this paragraph are as quoted from the Urgent Motion For Decision in L-35948, dated January 12, 1973. 5 As quoted from General Order No. 20, January 7, 1973. ================================================================================ GR No: Date: SC: En Banc
SUIT:
ISSUES:
DISSENT:
SEPARATE OPINION:
Republic of the Philippines SUPREME COURT
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Manila EN BANC
JOSUE JAVELLANA, Petitioner, G. R. No. L-36142 March 31, 1973 -versus-
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and THE SECRETARY OF FINANCE, Respondents. ________________________________________
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA and LORENZO M. TAADA, Petitioners, G. R. No. L-36164 March 31, 1973 -versus-
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. ________________________________________________
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL,
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RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, Petitioners, G. R. No. L-36165 March 31, 1973. -versus-
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 OF GENERAL SERVICES; SENATOR GIL J. PUYAT, IN HIS CAPACITY AS PRESIDENT OF THE SENATE; and SENATOR JOSE ROY, IN HIS CAPACITY AS PRESIDENT PRO-TEMPORE OF THE SENATE, Respondents. ___________________________________________________________
EDDIE B. MONTECLARO, [PERSONALLY AND IN HIS CAPACITY AS PRESIDENT OF THE NATIONAL PRESS CLUB OF THE PHILIPPINES, Petitioner, G. R. No. L-36236 March 31, 1973 -versus-
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER and THE NATIONAL TREASURER, Respondents. ____________________________________________________
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, Petitioners, G. R. No. L-36283 March 31, 1973 -versus-
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THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER and THE HONORABLE AUDITOR GENERAL, 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 Sedfrey Ordoez, et al. against the National Treasurer and the Commission on Elections [Case G. R. No. L-35942]; on December 12, 1972,
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by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing [Case G. R. No. L-35948] and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections [Case G. R. No. L-35953]; on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing [Case G. R. No. L-35961], and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General [Case G. R. No. L-35965]; and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General [Case G. R. No. L-35979]. In all these cases, except the last [G. R. No. L-35979], the respondents were required to file their answers "not later than 12:00 [o'clock] noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case G.R. No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973. Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution." In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia: "6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973]; "7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose [1] The New Society; [2] Reforms instituted under Martial Law;
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[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?
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[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
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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."
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At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L35949, "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:
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"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;
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[b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court." On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G. R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him [the writer] a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G. R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor: "BY THE PRESIDENT OF THE PHILIPPINES "PROCLAMATION NO. 1102 "ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. "WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; "WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; "WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; "WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? "WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no
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need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; "WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. "IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. "Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS "President of the Philippines "By the President: "ALEJANDRO MELCHOR "Executive Secretary"
Such is the background of the cases submitted determination. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and without merit." Identical defenses were set up in the other cases under consideration. Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred to merely concur in the opinion of one of our colleagues. Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulated the views of the Members of the Court, as follows: 1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.
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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
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within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under consideration. Accordingly, the Court acting in conformity with the position taken by six (6) of its members, [1] with three (3) members dissenting,[2] with respect to G. R. No. L-35948 only and another member[3] dissenting, as regards all of the cases, dismissed the same, without special pronouncement as to costs. The Present Cases Prior thereto, or on January 20, 1973, Josue Javellana filed Case G. R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution" referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution"; "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence null and void." Similar actions were filed on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service[4] on February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and the National Treasurer[5] and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales [6] against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General. Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel,[7] Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as "duly elected members" thereof, filed Case G. R. No. L36165, against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their petition as amended on January 26, 1973 petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned petitioners [8] would expire on December 31, 1975, and that of the others [9] on December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same having been closed by the authorities in physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were ordered cleared by the
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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 cannot 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 of impairment of the freedom of the 1971 Constitutional
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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 of submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submission of the proposed constitution," the "procedure for ratification adopted through the Citizens Assemblies"; 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 was substantial compliance with Article XV of the 1935 Constitution"; 4) "(t)he Constitution was properly submitted to 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 comments therein, alleging that "(t)he subject matter" of said case "is a highly political question which, under the circumstances, this Court would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic exercise in futility." On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G. R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G. R. No. L-36283[10] agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G. R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments, as well as the documents required of them or whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G. R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G. R. Nos. L-36164 and 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 personal opinion on the issues before the Court. After the exposition of 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
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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. L36165, 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 is 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 a "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]
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The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the government the Executive and the Legislative is present, which circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law [statute] passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress.[12] A treaty is entered into by the President with the concurrence of the Senate, [13] which is not required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code, which provides: Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made effective in executive orders. Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law, resolution, or executive orders, may be promulgated in an executive proclamation, with all the force of an executive order.[14] In fact, while executive orders embody administrative acts or commands of the President, executive proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in G. R. No. L-36165.[15] As a 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
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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 dispense with said election or plebiscite; that the proceedings before the Citizens' Assemblies did not constitute and may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in many instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they were allegedly called upon to express their views. Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, [17] in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution.. Thus, in the aforementioned plebiscite cases,[18] We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, [19] questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker[20] and Montenegro v. Castaeda,[21] insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply
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and expressly modified, in Gonzales v. Commission on Elections, [22] the political-question theory adopted in Mabanag v. Lopez Vito.[23] Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito.[24] The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration in the plebiscite cases. The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation of powers characteristic of the Presidential system of government the functions of which are classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere but only within such sphere each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments provided that such acts, measures or decisions are 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, [26] this Court quoted with approval from In re McConaughy,[27] the following: "At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided
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contrary to the view contended for by the Attorney General that it would seem to be finally settled. xxx xxx xxx "What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political questions, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated him, free from judicial control, so long as he observes the laws act within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a politics nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under constitutional government must act accordingly to law and subject its restrictions, and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not of men" words which Webster said were the greatest contained in any written constitutional document." (Emphasis supplied). and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen, We added that "the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed or imposed by the Constitution would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution to settle it. This explains why, in Miller v. Johnson, [28] it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended as it is in our 1935 Constitution "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid."[29] In fact, this very Court speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and
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foremost leaders of the Convention that drafted the 1935 Constitution declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government.[30] The Solicitor General has invoked Luther v. Borden[31] in support of his stand that the issue under consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under consideration. Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the military service of said former colony of England, alleged in their defense that they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and the state had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for unlike other states which adopted a new Constitution upon secession from England Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution. Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed by those who belonged to this segment of the population which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any law of the existing government. The delegates to such convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode Island. The charter government, which was supported by a large number of citizens of the state, contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel government which was never able to exercise any authority in the state broke into his house. Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of government. Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were to be given, the persons who were to receive and return them, and the qualifications of the voters having all been previously authorized and provided for by law passed by the charter government," the latter formally surrendered all of its powers to the new government, established under its authority, in May 1843, which had been in operation uninterruptedly since then.
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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
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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 other than those referring to its power to review decisions of a state court concerning the constitution and government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the present cases, having as the Federal Supreme Court admitted no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnessota had the following to say: Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightest application to the case at bar. When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the highest court of a state upon a question of the construction of the Constitution of the state.[33] Baker v. Carr,[34] cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as:"deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Similarly, in Powell v. McCormack,[35] the same Court, speaking through then Chief Justice Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory judgment declaring thereunder that he whose qualifications were uncontested had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof. After an, exhaustive analysis of the cases on this subject, the Court concluded: The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. [36] In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court's bounden duty to decide such question.
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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 L36164 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 abovementioned 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:
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1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately," but "in joint session assembled"; 2. That such amendments be "submitted to the people for their ratification" at an "election"; and 3. That such amendments be "approved by a majority of the votes cast" in said election. Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with. 2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification conformably to Art. XV of the Constitution? In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads: Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. Sections 1 and 2 of Art. X of the Constitution ordain in part: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. ... xxx xxx xxx Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. xxx xxx xxx[39] a. Who may vote in a plebiscite under Art. V of the Constitution? Petitioners maintain that Section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who
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shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language "(s)uffrage may be exercised" used in Section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly Sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites prescribed in said Act. I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, Section 1 of Art. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said Constitution which report was, in turn, "strongly influenced by the election laws then in force in the Philippines." [40] "Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in Section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly established by the original Constitution instead of the bicameral Congress subsequently created by amendment said Constitution the duty to "extend the right of suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." [41] The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was rejected by the Convention. [42] This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Despite some debates on the age qualification amendment having been proposed to reduce the same to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right of suffrage the second recommendation limiting the right of suffrage to those who could "read and write" was in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention without any dissenting vote," although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write, which was decided in the negative.[43] What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a right is necessarily a negation of the authority of Congress or of any other branch of the Government to deny said right to the subject of the grant and, in this sense only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage. At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in the
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Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as Chapter 20 thereof, and then in the Administrative Code of 1917 Act 2711 as Chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below.[44] In all of these legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and possessed any of the statutory disqualifications. In short, the history of Section 1, Art. V of the Constitution, shows beyond doubt than the same conferred not guaranteed the authority to persons having the qualifications prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of the aforementioned disqualifications. This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite of a "partial amendment" to said Section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Commission on Elections, [45] granting the writs, of prohibition and injunction therein applied for, upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a complete amendment, but a "partial amendment" of said Section 1, which could be amended further, after its ratification, had the same taken place, so that the aforementioned partial amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution. Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said Section 6 of Rep. Act No. 3590, [46] pursuant to which the "majority vote of all the barrio 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 members qualified to vote" who, pursuant to Section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the six months immediately preceding election, duly registered in the list of voters" and " otherwise disqualified" just like the provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution "may vote in the plebiscite." I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution particularly of a written and rigid one, like ours generally accorded a mandatory status unless the intention to the contrary is manifest, which is not so as regards said Art. V for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land.[48] Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most important measures for which it demands in addition to favorable action of the barrio council the approval of barrio assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held.
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It is similarly inconceivable that those who drafted the 1935 Constitution intended Section 1 of Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the object thereof much more important if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation and, accordingly, demands greater experience and maturity on the part of the electorate than that required for the election of public officers, [49] whose average term ranges from 2 to 6 years. It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code,[50] and of whether or not they are disqualified under the provisions of said Constitution and Code,[51] or those of Republic Act No. 3590,[52] have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention. In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution, "14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973. It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to say on this point in subsequent pages were fundamentally irregular, in that persons lacking the qualifications prescribed in Section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' Assemblies must be considered null and void.[53] It has been held that "(t)he power to reject an entire poll should be exercised in a case where it is 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.
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The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." [56] The word "cast" is defined as "to deposit formally or officially."[57] It seems to us that a vote is cast when a ballot is deposited indicating a "choice." The word "cast" means "deposit (a ballot) formally or officially. In simple words, We would define a "vote cast" as the exercise on a ballot of the choice of the voter on the measure proposed.[58] In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or by raising by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio. b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites) Just as essential as compliance with said Art. V of the 1935 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.
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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." [63] Thus, the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the independence of each member of the Commission. With respect to the functions thereof as a body, Section 2 of said Art. X ordains that "(t)he Commission on Elections shall have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those involving the right to vote, all administrative question affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials." And, to forests possible conflicts or frictions between the Commission, on one hand, and the other offices or agencies of the executive department, on the other, said Section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supreme Court. In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers thereto, some of which are enumerated in Sections 5 and 6 of said Act, quoted below.[64] Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal, provincial and files of registered voters; the composition and appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of municipal, provincials and national boards of canvassers; the presentation of the political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the penalties for such violations. Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and honest election," as envisaged in Section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the right to vote
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secretly one of the most, fundamental and critical features of our election laws from time immemorial particularly at a time when the same was of utmost importance, owing to the existence of Martial Law. In Glen v. Gnau,[65] involving the casting of many votes openly, without complying with the requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "could legally dispense with such requirement, they could with equal propriety, dispense with all of them, including the one that the vote shall be by secret ballot, or even by no 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 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.
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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. X 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. "All the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or as election by those having a right to participate [in the selection] of those who shall fill the offices, or of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary.[68]
IV. Has the proposed Constitution aforementioned been approved by a majority of the people in Citizens' Assemblies allegedly held throughout the Philippines? Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from its power are derived. The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it:
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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 legal
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foundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people, can not possibly have any legal effect or value. The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution,[69] is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said resolution.[70] If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the office involved.[71] If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor such as the cases at bar and the issue raised therein may and should be decided in accordance with the evidence presented. The case of In re McConaughy[72] is squarely in point. "As the Constitution stood from the organization of the state" of Minnessota "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising revenue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion." Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the proclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county board and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. [U.S.] 1221. It is settled law that the decisions of election officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the board shall be final" and there is no such law in the cases at bar. "The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. [4th Ed.] sec. 523." In Bott v. Wartz,[73] the Court reviewed the statement of results of the election made by the canvassing board, in order that the true results could be judicially determined. And so did the court in Rice v. Palmer.[74]
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Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President the alleged result of the citizens' assemblies all over the Philippines it follows necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens' Assemblies. [75] Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense which, if true, should be within their peculiar knowledge is clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far established the truth of such defense. Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia: Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution. In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled
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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]
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To begin with, questions Nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 "Do you approve the new Constitution?" One approves "of" the act of another which does not need such approval for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In short, the insertion of said two (2) questions apart from the other questions adverted to above indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the proposed Constitution. Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan dated January 15, 1973, to the Chief Executive, the former reported: This report includes a resumee (sic) of the activities we undertook in effecting the referendum on the eleven questions you wanted our people consulted on and the Summary of Results thereof for each municipality and for the whole province. xxx xxx xxx Our initial plans and preparations, however, dealt only on the original five questions. Consequently, when we received an instruction on January 10 to change the questions, we urgently suspended all scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used. On January 11, another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the province. Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support extended by almost all government officials and employees in the province, particularly of the Department of Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed. As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies. Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings" and call all available officials "to discuss with them the new set of guidelines and materials to be used. " Then, "on January 11, another instruction from the top was received to include the original five questions among those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising holding of the Citizens' Assembly meetings throughout province. As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies."
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This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss not put into operation means and ways to carry out the changing instructions from the top on how to organize the citizens' assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people and government not decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government policies" and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been ratified. If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11, 1973, one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediate families and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizens' assemblies would be held in the places where their respective residences were located. In the Prohibition and Amendment case,[77] attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any law or portion of the Constitution." In line with its own pronouncement in another case, the Federal Supreme Court of the United States stressed, in Baker v. Carr,[78] that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared." In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise than in the negative.
V. Have the people acquiesced in the proposed Constitution? It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated their conformity thereto. As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department specially under a written, rigid Constitution with a republican system of Government like ours the role of that Department is inherently, basically and fundamentally executive in nature to "take care that the laws be faithfully executed," in the language of our 1935 Constitution.[79]
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Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all powers of Government although some question his authority to do so and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people that he could not do under the authority he claimed to have under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed. Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or office of the Government complies with the commands of a superior officer or office, under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would just be guilty of insubordination. Thus, for instance, the case of Taylor v. Commonwealth [80] cited by respondents herein in support of the theory of the people's acquiescence involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by: 1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby"; 2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the Convention"; 3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting its provisions into operation"; 4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions"; and 5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States." Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection thereof. But, it
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was recognized, not by the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature not merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government, and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution had been ratified despite General Order No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102. It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant departure therefrom.[81] Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, could have met in any other place, the building in which they perform their duties being immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist [Primitivo Mijares] attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that date, [82] likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis which may result in the exercise by me of authority I have not exercised." No matter how good the intention behind these statement may have been, the idea implied therein was too clear an ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or its alleged ratification. For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation
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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 connotes power of the gun, meant coercion by the military, and compulsion and intimidation."[83] The failure to use the gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England and other parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein. As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a document certified to the President for his action under the Constitution by the Senate President and the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled bill? Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned president whose honesty and integrity are unquestionable were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association President has absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as non-existent. Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines and the records do not show that any such certification, to the President of the Philippines or to the President Federation or National Association of presidents of Provincial Associations of presidents of municipal association presidents of barrio or ward assemblies of citizens would not, legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to Article X of the Constitution, should not and must not be all participate in said plebiscite if plebiscite there was. After citing approvingly its ruling in United States v. Sandoval,[84] the Highest Court of the United States that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power."[85]
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I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed Constitution.
VI. Are the Parties entitled to any relief? Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases. In this connection, it should be noted that the Court has not decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective petitions with three (3) members of the voting to dismiss them outright and then considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it was claimed, which would result from a decision thereon, if adverse to the Government. As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition of judgment therein. Still one of the members of the Court [Justice Zaldivar] was of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the Court Justices Barredo, Antonio and Esguerra filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation 1102."[86] When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share, however, either view, believing that the main question that arose before the rendition of said judgment had not been sufficiently discussed and argued as the nature and importance thereof demanded. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days morning and afternoon, or a total of exactly 26 hours and 31 minutes the respective counsel filed extensive notes on their or arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if disregarding forms the petitions had been given due course and the cases had been submitted for decision. Accordingly, the majority of the members of the Court believe that they should express their views on the aforementioned issues as if the same were being decided on the merits, and they have done so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet,
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formally given due course to And, now, here are my views on the reliefs sought by the parties. the petitions herein.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned officers of the Senate. In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more than prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite. Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of priority. We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by each of them. It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. The five questions thus agreed upon as reflecting the basic issues herein involved are the following: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?
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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.
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3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law."[88] Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution."[89] 4. On the fourth question of relief, six (6) members of the Court, namely: Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, an therefore beyond the competence of this Court, [90] are relevant and unavoidable."[91] Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. 5. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.
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It is so ordered. Makalintal, Castro, Barredo, Makasiar, Antonio, and Esguerra, JJ., concur.
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Petitioner Appellant: Respondent Appellee: FACTS:

DECISION: Decidendi (ratio)

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Joaquin Bernas, a member of the 1986 Constitutional

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shall by law provide for the implementation of the exercise of

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