peace when civil authority reigns supreme?

To go along with the respondents theory in this regard is to render written Constitutions useless or
mere "ropes of sand", allowing for a government of men instead of one of laws. For it cannot be
discounted that a situation may arise where the people are heralded to action at a point of a gun or by
the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action
overthrows legal processes.
History has recorded such instances, and I can think of no better example than that of Jesus Christ of
Judea who was followed and loved by the people while curing the sick, making the lame walk and the
blind see, but shortly was condemned by the same people turned into fanatic rabble crying out
"Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:jgc:chanrobles.com.ph
"A good Constitution should be beyond the reason of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are
to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15) 3
2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October
16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution
are null and void; as they contravene the express provisions on the amending process of the 1973
Constitution laid down in Article XVI, Section 1(1) and Article XVII, Section 15, more particularly the
latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in
detail this particular matter.
I would just wish to stress the point that although at present there is no interim National Assembly
which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus"
does not justify a transgression of the constitutional provisions on the manner of amending the
fundamental law. We cannot cure one infirmity the existence of a "vacuum" caused by the nonconvening of the interim National Assembly with another infirmity, that is, doing violence to the
Charter.
"All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil
may succeed and a worse." (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. To my mind, the only possible measure that
will lead our country and people to a condition of normalcy is the lifting or ending of the state of
martial law. If I am constrained to make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with the impression that for petitioners
to contest the holding of the October 16 referendum-plebiscite is for them to assume a position of
blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I
cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I
had ventured to state that the simple solution to the present dilemma is the lifting of martial law and
the implementation of the constitutional provisions which will usher in the parliamentary form of
government ordained in the Constitutional, which, as proclaimed in Proclamation 1102, the people
themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable consequences thereof, the only remedy being to set in motion
the constitutional machinery by which the supposed desired amendments may properly be adopted
and submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of

government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc v.
Commission on Elections:jgc:chanrobles.com.ph
". . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity
of any public act whether proceeding from the highest official or the lowest functionary, is a postulate
of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy.." . . (36 SCRA, 228, 234, Emphasis supplied)
A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the
Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people
for the general good under constant restraints of law.
3. The true question before Us is one of power: Does the incumbent President of the Philippines
possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion
of Justice Teehankee.
Respondents would justify the incumbent Presidents exercise of constituent powers on theory that he
is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., Et. Al. v. Commission on
Elections, Et Al., L-40004, January 31, 1975. I wish to stress that although in my separate opinion in
said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President
legislative powers, I qualified my statement as follows:jgc:chanrobles.com.ph
". . . As to, whether, or not, this unlimited legislative power of the President continues to exist even
after the ratification of the Constitution is a matter which I am not ready to concede at the moment,
and which at any rate I believe is not essential in resolving this Petition for reasons to be given later.
Nonetheless, I hold the view that the President is empowered to issue proclamations, orders, decrees,
etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935
or 1973 Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum during
the transition period when the interim National Assembly is not yet convened and functioning, for
otherwise, there will be a disruption of official functions resulting in a collapse of the government and
of the existing social order." (62 SCRA, pp. 275, 347)
I believe it is not disputed that legislative power is essentially different from constituent power; one
does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains