EN BANC WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within

ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the
G.R. No. 202242 April 16, 2013 second paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which
reads: "This disposition is immediately executory."9
FRANCISCO I. CHAVEZ, Petitioner,
vs. Pursuant to the same resolution, petitioner and respondents filed their respective
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, memoranda.10
JR., Respondents.
Brief Statement of the Antecedents
RESOLUTION
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the
MENDOZA, J.: exercise of appointing members of the Judiciary has always been the exclusive prerogative of
the executive and legislative branches of the government. Like their progenitor of American
origins, both the Malolos Constitution11 and the 1935 Constitution12 vested the power to
This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General
appoint the members of the Judiciary in the President, subject to confirmation by the
(OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman
Commission on Appointments. It was during these times that the country became witness to
Niel C. Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General
the deplorable practice of aspirants seeking confirmation of their appointment in the
Francisco I. Chavez (petitioner).
Judiciary to ingratiate themselves with the members of the legislative body.13

By way of recapitulation, the present action stemmed from the unexpected departure of
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers
former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as
in one body, the appointment of judges and justices ceased to be subject of scrutiny by
his potential successor. In his initiatory pleading, petitioner asked the Court to determine 1]
another body. The power became exclusive and absolute to the Executive, subject only to the
whether the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more
condition that the appointees must have all the qualifications and none of the
than one (1) member of Congress to sit in the JBC; and 2] if the practice of having two (2)
disqualifications.
representatives from each House of Congress with one (1) vote each is sanctioned by the
Constitution.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of
political pressure and partisan activities,15 the members of the Constitutional Commission
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in
saw it wise to create a separate, competent and independent body to recommend nominees
the following manner:
to the President.

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and
Thus, it conceived of a body, representative of all the stakeholders in the judicial
Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined
appointment process, and called it the Judicial and Bar Council (JBC). The Framers carefully
to reconstitute itself so that only one (1) member of Congress will sit as a representative in
worded Section 8, Article VIII of the 1987 Constitution in this wise:
its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents motion for reconsideration and with due regard to
Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral
arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the
arguments and agreed, in the meantime, to suspend the effects of the second paragraph of
the dispositive portion of the July 17, 2012 Decision which decreed that it was immediately
executory. The decretal portion of the August 3, 2012 Resolution8 reads:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to
sit in the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional
provision that Congress is entitled to one (1) representative, each House sent a
representative to the JBC, not together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered.1wphi1 An
eighth member was added to the JBC as the two (2) representatives from Congress began
sitting simultaneously in the JBC, with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House
of Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and
dismiss the petition on the following grounds: 1] that allowing only one representative from
Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the
failure of the Framers to make the proper adjustment when there was a shift from
unilateralism to bicameralism was a plain oversight; 3] that two representatives from
Congress would not subvert the intention of the Framers to insulate the JBC from political
partisanship; and 4] that the rationale of the Court in declaring a seven-member composition
would provide a solution should there be a stalemate is not exactly correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on
the principal issues covered by the first and second grounds for lack of merit. Significantly,
the conclusion arrived at, with respect to the first and second grounds, carries greater
bearing in the final resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental
powers of government are established, limited and defined and by which those powers are
distributed among the several departments for their safe and useful exercise for the benefit
of the body politic.19 The Framers reposed their wisdom and vision on one suprema lex to be
the ultimate expression of the principles and the framework upon which government and
society were to operate. Thus, in the interpretation of the constitutional provisions, the
Court firmly relies on the basic postulate that the Framers mean what they say. The language
used in the Constitution must be taken to have been deliberately chosen for a definite
purpose. Every word employed in the Constitution must be interpreted to exude its
deliberate intent which must be maintained inviolate against disobedience and defiance.
What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the
singular letter "a" to describe "representative of Congress," the Filipino people through the
Framers intended that Congress be entitled to only one (1) seat in the JBC. Had the intention
been otherwise, the Constitution could have, in no uncertain terms, so provided, as can be
read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted
as to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which
provides that a tie in the presidential election shall be broken "by a majority of all the
Members of both Houses of the Congress, voting separately."20Another is Section 8 thereof
which requires the nominee to replace the Vice-President to be confirmed "by a majority of
all the Members of both Houses of the Congress, voting separately."21 Similarly, under
Section 18, the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus may be revoked or continued by the Congress, voting separately, by a vote of
at least a majority of all its Members."22 In all these provisions, the bicameral nature of
Congress was recognized and, clearly, the corresponding adjustments were made as to how a
matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer
inadvertence, to their decision to shift to a bicameral form of the legislature, is not
persuasive enough. Respondents cannot just lean on plain oversight to justify a conclusion
favorable to them. It is very clear that the Framers were not keen on adjusting the provision
on congressional representation in the JBC because it was not in the exercise of its primary
function to legislate. JBC was created to support the executive power to appoint, and
Congress, as one whole body, was merely assigned a contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has
two (2) Houses. The need to recognize the existence and the role of each House is essential
considering that the Constitution employs precise language in laying down the functions
which particular House plays, regardless of whether the two Houses consummate an official
act by voting jointly or separately. Whether in the exercise of its legislative23 or its non-
legislative functions such as inter alia, the power of appropriation,24 the declaration of an
existence of a state of war,25 canvassing of electoral returns for the President and Vice-
President,26 and impeachment,27 the dichotomy of each House must be acknowledged and
recognized considering the interplay between these two Houses. In all these instances, each
House is constitutionally granted with powers and functions peculiar to its nature and with
keen consideration to 1) its relationship with the other chamber; and 2) in consonance with
the principle of checks and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation
of the JBC, the Framers arrived at a unique system by adding to the four (4) regular
members, three (3) representatives from the major branches of government - the Chief
Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice
(representing the Executive Department), and a representative of the Congress (representing
the Legislative Department). The total is seven (7), not eight. In so providing, the Framers
simply gave recognition to the Legislature, not because it was in the interest of a certain
constituency, but in reverence to it as a major branch of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District
of Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S.
Puno:
I humbly reiterate my position that there should be only one representative of Congress in
the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further
interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that "construction
and interpretation come only after it has been demonstrated that application is impossible or
inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is
to negate the principle of equality among the three branches of government which is
enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of
single representation of Congress in the JBC in order to respect and give the right meaning to
the above-quoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of
two votes for Congress runs counter to the intendment of the framers. Such interpretation
actually gives Congress more influence in the appointment of judges. Also, two votes for
Congress would increase the number of JBC members to eight, which could lead to voting
deadlock by reason of even-numbered membership, and a clear violation of 7 enumerated
members in the Constitution. (Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each
category of members pertained to a single individual only. Thus, while we do not lose sight of
the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section
8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a
representative." Thus, two (2) representatives from Congress would increase the number of
JBC members to eight (8), a number beyond what the Constitution has contemplated.
(Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-
Santiago, a former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of
the JBC reflects the Commissions desire "to have in the Council a representation for the
major elements of the community." xxx The ex-officio members of the Council consist of
representatives from the three main branches of government while the regular members are
composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII,
Section 8(1) was to treat each ex-officio member as representing one co-equal branch of
government. xxx Thus, the JBC was designed to have seven voting members with the three
ex-officio members having equal say in the choice of judicial nominees.
No parallelism can be drawn between the representative of Congress in the JBC and the
exercise by Congress of its legislative powers under Article VI and constituent powers under
Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of
government, is constitutionally treated as another co-equal branch in the matter of its
representative in the JBC. On the other hand, the exercise of legislative and constituent
powers requires the Senate and the House of Representatives to coordinate and act as
distinct bodies in furtherance of Congress role under our constitutional scheme. While the
latter justifies and, in fact, necessitates the separateness of the two Houses of Congress as
they relate inter se, no such dichotomy need be made when Congress interacts with the
other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign
the same weight to considerations that any of its representatives may have regarding
aspiring nominees to the judiciary. The representatives of the Senate and the House of
Representatives act as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly bestowed upon the
three. Sound reason and principle of equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in
the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from
the Senate or the House of Representatives, is constitutionally empowered to represent the
entire Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to
one full vote. This pronouncement effectively disallows the scheme of splitting the said vote
into half (1/2), between two representatives of Congress. Not only can this unsanctioned
practice cause disorder in the voting process, it is clearly against the essence of what the
Constitution authorized. After all, basic and reasonable is the rule that what cannot be legally
done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into
two or more is clearly a constitutional circumvention that cannot be countenanced by the
Court. Succinctly put, when the Constitution envisioned one member of Congress sitting in
the JBC, it is sensible to presume that this representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence
over the JBC simply because all of the regular members of the JBC are his appointees. The
principle of checks and balances is still safeguarded because the appointment of all the
regular members of the JBC is subject to a stringent process of confirmation by the
Commission on Appointments, which is composed of members of Congress.
Respondents contention that the current irregular composition of the JBC should be
accepted, simply because it was only questioned for the first time through the present
action, deserves scant consideration. Well-settled is the rule that acts done in violation of the
Constitution no matter how frequent, usual or notorious cannot develop or gain acceptance
under the doctrine of estoppel or laches, because once an act is considered as an
infringement of the Constitution it is void from the very beginning and cannot be the source
of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is
not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is inoperative as if it has not been passed at all. This rule, however, is not absolute.
Under the doctrine of operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. This is essential in the
interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil
Corporation:32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and
may have consequences which cannot always be ignored. The past cannot always be erased
by a new judicial declaration. The doctrine is applicable when a declaration of
unconstitutionality will impose an undue burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a declaration of unconstitutionality would put
the accused in double jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its
prior official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by
the direct action of the Filipino people, it cannot correct what respondents perceive as a
mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the
spirit of the Constitution, read into the law something that is contrary to its express
provisions and justify the same as correcting a perceived inadvertence. To do so would
otherwise sanction the Court action of making amendment to the Constitution through a
judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of
casus omissus "a case omitted is to be held as intentionally omitted."34 "The principle
proceeds from a reasonable certainty that a particular person, object or thing has been
omitted from a legislative enumeration."35 Pursuant to this, "the Court cannot under its
power of interpretation supply the omission even though the omission may have resulted
from inadvertence or because the case in question was not foreseen or
contemplated."36 "The Court cannot supply what it thinks the legislature would have supplied
had its attention been called to the omission, as that would be judicial legislation."37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the
Constitution against usurpation. The Court remains steadfast in confining its powers in the
sphere granted by the Constitution itself. Judicial activism should never be allowed to
become judicial exuberance.38 In cases like this, no amount of practical logic or convenience
can convince the Court to perform either an excision or an insertion that will change the
manifest intent of the Framers. To broaden the scope of congressional representation in the
JBC is tantamount to the inclusion of a subject matter which was not included in the
provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of situations no matter how ideal or
reasonable the proposed solution may sound. To the exercise of this intrusion, the Court
declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision of the Court, which reads, "This disposition is immediately executory," is
hereby LIFTED.
SO ORDERED.
Facts:
In 1994, instead of having only 7 members, an eighth member was added to the JBC as two
representatives from Congress began sitting in the JBC one from the House of
Representatives and one from the Senate, with each having one-half (1/2) of a vote. Then,
the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the
representatives from the Senate and the House of Representatives one full vote each.
Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents)
simultaneously sit in the JBC as representatives of the legislature. It is this practice that
petitioner has questioned in this petition. Respondents argued that the crux of the
controversy is the phrase a representative of Congress. It is their theory that the two
houses, the Senate and the House of Representatives, are permanent and mandatory
components of Congress, such that the absence of either divests the term of its substantive
meaning as expressed under the Constitution. Bicameralism, as the system of choice by the
Framers, requires that both houses exercise their respective powers in the performance of its
mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitution
speaks of a representative from Congress, it should mean one representative each from
both Houses which comprise the entire Congress.
Issue: From a simple reading of the above-quoted provision, it can readily be discerned that the
provision is clear and unambiguous. The first paragraph calls for the creation of a JBC and
1. Are the conditions sine qua non for the exercise of the power of judicial review have been places the same under the supervision of the Court. Then it goes to its composition where
met in this case? the regular members are enumerated: a representative of the Integrated Bar, a professor of
law, a retired member of the Court and a representative from the private sector. On the
2. Is the JBCs practice of having members from the Senate and the House of Representatives second part lies the crux of the present controversy. It enumerates the ex officio or special
making 8 instead of 7 sitting members unconstitutional? members of the JBC composed of the Chief Justice, who shall be its Chairman, the Secretary
of Justice and a representative of Congress.
3. What is the effect of the Court's finding that the current composition o
f the JBC is unconstitutional? The use of the singular letter a preceding representative of Congress is unequivocal and
leaves no room for any other construction. It is indicative of what the members of the
Held: Constitutional Commission had in mind, that is, Congress may designate only one (1)
representative to the JBC. Had it been the intention that more than one (1) representative
1. Yes. The Courts power of judicial review is subject to several limitations, namely: (a) there from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so
must be an actual case or controversy calling for the exercise of judicial power; (b) the provided.
person challenging the act must have standing to challenge; he must have a personal and
substantial interest in the case, such that he has sustained or will sustain, direct injury as a One of the primary and basic rules in statutory construction is that where the words of a
result of its enforcement; (c) the question of constitutionality must be raised at the earliest statute are clear, plain, and free from ambiguity, it must be given its literal meaning and
possible opportunity; and (d) the issue of constitutionality must be the very lis mota of the applied without attempted interpretation. It is a well-settled principle of constitutional
case. Generally, a party will be allowed to litigate only when these conditions sine qua non construction that the language employed in the Constitution must be given their ordinary
are present, especially when the constitutionality of an act by a co-equal branch of meaning except where technical terms are employed. As much as possible, the words of the
government is put in issue. Constitution should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the
The Court disagrees with the respondents contention that petitioner lost his standing to sue power of the courts to alter it, based on the postulate that the framers and the people mean
because he is not an official nominee for the post of Chief Justice. While it is true that a what they say. Verba legis non est recedendum from the words of a statute there should be
personal stake on the case is imperative to have locus standi, this is not to say that only no departure.
official nominees for the post of Chief Justice can come to the Court and question the JBC
composition for being unconstitutional. The JBC likewise screens and nominates other Applying the foregoing principle to this case, it becomes apparent that the word Congress
members of the Judiciary. Albeit heavily publicized in this regard, the JBCs duty is not at all used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular
limited to the nominations for the highest magistrate in the land. A vast number of aspirants allusion whatsoever is made on whether the Senate or the House of Representatives is being
to judicial posts all over the country may be affected by the Courts ruling. More importantly, referred to, but that, in either case, only a singular representative may be allowed to sit in
the legality of the very process of nominations to the positions in the Judiciary is the nucleus the JBC.
of the controversy. The claim that the composition of the JBC is illegal and unconstitutional is
an object of concern, not just for a nominee to a judicial post, but for all citizens who have It is worthy to note that the seven-member composition of the JBC serves a practical
the right to seek judicial intervention for rectification of legal blunders. purpose, that is, to provide a solution should there be a stalemate in voting. This underlying
reason leads the Court to conclude that a single vote may not be divided into half (1/2),
2. Section 8, Article VIII of the 1987 Constitution provides: between two representatives of Congress, or among any of the sitting members of the JBC
for that matter. This unsanctioned practice can possibly cause disorder and eventually
muddle the JBCs voting process, especially in the event a tie is reached. The aforesaid
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the purpose would then be rendered illusory, defeating the precise mechanism which the
Constitution itself createdWhile it would be unreasonable to expect that the Framers provide
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, for every possible scenario, it is sensible to presume that they knew that an odd composition
is the best means to break a voting deadlock.
and a representative of the Congress as ex officio Members, a representative of the
The respondents insist that owing to the bicameral nature of Congress, the word Congress
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a in Section 8(1), Article VIII of the Constitution should be read as including both the Senate
and the House of Representatives. They theorize that it was so worded because at the time
representative of the private sector. the said provision was being drafted, the Framers initially intended a unicameral form of
Congress. Then, when the Constitutional Commission eventually adopted a bicameral form of
Congress, the Framers, through oversight, failed to amend Article VIII, Section 8 of the
Constitution.
It is evident that the definition of Congress as a bicameral body refers to its primary
function in government to legislate. In the passage of laws, the Constitution is explicit in the
distinction of the role of each house in the process. The same holds true in Congress non-
legislative powers. An inter-play between the two houses is necessary in the realization of
these powers causing a vivid dichotomy that the Court cannot simply discount. This,
however, cannot be said in the case of JBC representation because no liaison between the
two houses exists in the workings of the JBC. Hence, the term Congress must be taken to
mean the entire legislative department.
3. As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if it has not been
passed at all. This rule, however, is not absolute. Under the doctrine of operative facts,
actions previous to the declaration of unconstitutionality are legally recognized. They are not
nullified. This is essential in the interest of fair play.
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and
may have consequences which cannot always be ignored. The past cannot always be erased
by a new judicial declaration. The doctrine is applicable when a declaration of
unconstitutionality will impose an undue burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a declaration of unconstitutionality would put
the accused in double jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.3
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its
prior official actions are nonetheless valid. (Chavez vs. Judicial and Bar Council, G.R. No.
202242, July 17, 2012)
NATURE:
The case is a motion for reconsideration filed by the JBC in a prior decision rendered July 17,
2012 that JBCs action of allowing more than one member of the congress to represent the
JBC to be unconstitutional
FACTS:
In 1994, instead of having only seven members, an eighth member was added to the JBC as
two representatives from Congress began sitting in the JBC one from the House of
Representatives and one from the Senate, with each having one-half (1/2) of a vote. Then,
the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the
representatives from the Senate and the House of Representatives one full vote each.
Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents)
simultaneously sit in the JBC as representatives of the legislature. It is this practice that
petitioner has questioned in this petition. it should mean one representative each from both
Houses which comprise the entire Congress. Respondent contends that the phrase a
representative of congress refers that both houses of congress should have one
representative each, and that these two houses are permanent and mandatory components
of congress as part of the bicameral system of legislature. Both houses have their
respective powers in performance of their duties. Art VIII Sec 8 of the constitution provides
for the component of the JBC to be 7 members only with only one representative from
congress.
ISSUE:
Whether the JBCs practice of having members from the Senate and the House of
Representatives making 8 instead of 7 sitting members to be unconstitutional as provided in
Art VIII Sec 8 of the constitution.
HELD:
Yes. The practice is unconstitutional; the court held that the phrase a representative of
congress should be construed as to having only one representative that would come from
either house, not both. That the framers of the constitution only intended for one seat of the
JBC to be allotted for the legislative.
It is evident that the definition of Congress as a bicameral body refers to its primary
function in government to legislate. In the passage of laws, the Constitution is explicit in the
distinction of the role of each house in the process. The same holds true in Congress non-
legislative powers. An inter-play between the two houses is necessary in the realization of
these powers causing a vivid dichotomy that the Court cannot simply discount. This,
however, cannot be said in the case of JBC representation because no liaison between the
two houses exists in the workings of the JBC. Hence, the term Congress must be taken to
mean the entire legislative department. The Constitution mandates that the JBC be
composed of seven (7) members only.
FALLO: The motion was denied.
 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.
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.
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
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 L-28224 the Solicitor General
maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the
ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator 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.12Hence, 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.
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 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.
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
Vice-President, the Justices of the Supreme Court and the Auditor General for, inter alia,
culpable violation of the Constitution,20 the enforcement of which is, not only their
mandatory duty, but also, their main function. This provision indicates that, despite the
violation of such mandatory duty, the title to their respective offices remains unimpaired,
until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with
Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not
automatic.
Even if we assumed, however, that the present Members of Congress are merely de
facto officers, it would not follow that the contested resolutions and Republic Act No. 4913
are null and void. In fact, the main reasons for the existence of the de facto doctrine is that
public interest demands that acts of persons holding, under color of title, an office created by
a valid statute be, likewise, deemed valid insofar as the public as distinguished from the
officer in question is concerned.21 Indeed, otherwise, those dealing with officers and
employees of the Government would be entitled to demand from them satisfactory proof of
their title to the positions they hold, before dealing with them, or before recognizing their
authority or obeying their commands, even if they should act within the limits of the
authority vested in their respective offices, positions or employments.22 One can imagine this
great inconvenience, hardships and evils that would result in the absence of the de
facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not
be contested except directly, by quo warranto proceedings. Neither may the validity of his
acts be questioned upon the ground that he is merely a de facto officer.24 And the reasons
are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of
a de facto officer, if within the competence of his office, are valid, insofar as the public is
concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the acts therein
involved have not been completed and petitioners herein are not third parties. This pretense
is untenable. It is inconsistent 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 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;"
(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:
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.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.
21 SCRA 774 Political Law Amendment to the Constitution Political Question vs membership of the House of Representatives from a maximum of 120 in accordance with the
Justiciable Question
In June 1967, Republic Act 4913 was passed. This law provided for the COMELEC to hold a
plebiscite for the proposed amendments to the Constitution. It was provided in the said law
that the plebiscite shall be held on the same day that the general national elections shall be
held (November 14, 1967). This was questioned by Ramon Gonzales and other concerned
groups as they argued that this was unlawful as there would be no proper submission of the
proposals to the people who would be more interested in the issues involved in the general
election rather than in the issues involving the plebiscite.
Gonzales also questioned the validity of the procedure adopted by Congress when they came
up with their proposals to amend the Constitution (RA 4913). In this regard, the COMELEC
and other respondents interposed the defense that said act of Congress cannot be reviewed
by the courts because it is a political question.
ISSUE:
I. Whether or not the act of Congress in proposing amendments is a political question.
II. Whether or not a plebiscite may be held simultaneously with a general election.
HELD:
I. No. The issue is a justiciable question. It must be noted that the power to amend as well as
the power to propose amendments to the Constitution is not included in the general grant of
legislative powers to Congress. Such powers are not constitutionally granted to Congress. On
the contrary, such powers are inherent to the people as repository of sovereignty in a
republican state. That being, when Congress makes amendments or proposes amendments,
it is not actually doing so as Congress; but rather, it is sitting as a constituent assembly. Such
act is not a legislative act. Since it is not a legislative act, it is reviewable by the Supreme
Court. The Supreme Court has the final say whether or not such act of the constituent
assembly is within constitutional limitations.
II. Yes. There is no prohibition to the effect that a plebiscite must only be held on a special
election. SC held that there is nothing in this provision of the [1935] Constitution to indicate
that the election therein referred to is a special, not a general election. The circumstance
that the previous amendment 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.
Note: **Justice Sanchez and Justice JBL Reyes dissented. Plebiscite should be scheduled on
a special date so as to facilitate Fair submission, intelligent consent or rejection. They
should be able to compare the original proposition with the amended proposition.
FACTS: This case is composed of consolidated cases filed separately by Petitioner Gonzalez
and PHILCONSA assailing for the declaration of nullity of RA. No. 4913 and R.B.H. No. 1 and 3.
On March 16, 1967, the Senate and the House of Representatives passed the following
resolutions (Resolution of Both Houses/R.B.H.):
1. R.B.H No. 1: Proposes that Sec 5, Art VI of Constitution be amended so as to increase the
present Constitution, to a maximum of 180, to be apportioned among several provinces and
that each province shall have at least one (1) member.
2. R.B.H. No. 2: Calls for a convention to propose amendments to the Constitution, which will
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.
3. R.B.H. No. 3: Proposes that Sec 16, Art VI of the Constitution be amended so as to
authorize Senators and Members of the House of Representatives to become delegates to
the aforementioned constitutional convention, without the need to forfeit their respective
seats in Congress.
Subsequently, Congress passed a bill, which became RA 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 on November 14, 1967. This
act fixes the date and manner of elevtion for the proposed amendments to be voted upon by
the people, and appropriates funds for said election.

Petitioners assail the validity/constitutionality of RA No. 4913 and for the prohibition with
preliminary injunction to restrain COMELEC from implementing or complying with the said
law. PHILCONSA also assails R.B.H No. 1 and 3.

ISSUE:

1.) Whether or not RA No. 4913 is unconstitutional.

2.) Whether or not the issue involves a political question.

HELD:

1.) Pursuant to Article XV of the 1935 Constitution, SC held that there is nothing in this
provision that states that the election referred to is special, different from the general
election. The Congress deemed it best to submit the amendments for ratification in
accordance with the provisions of the Constitution. It does not negate its authority to submit
proposed amendments for ratification in general elections. Petition is therefore DENIED.

2.) SC also noted that the issue is a political question because it attacks the wisdom of the
action taken by Congress and not the authority to take it. A political question is not subject to
review by the Court.
 EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO
B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V.
BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of
the 1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be, submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of
law in so far as they direct the holding of such plebiscite and by also declaring the acts of the
respondent Commission (COMELEC) performed and to be done by it in obedience to the
aforesaid Convention resolutions to be null and void, for being violative of the Constitution of
the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional
Convention, through its President, for such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining issues with petitioner. To further put
things in proper order, and considering that the fiscal officers of the Convention are
indispensable parties in a proceeding of this nature, since the acts sought to be enjoined
involve the expenditure of funds appropriated by law for the Convention, the Court also
ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be
made respondents. After the petition was so amended, the first appeared thru Senator
Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru
counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even
possible confusion, and considering that with the principal parties being duly represented by
able counsel, their interests would be adequately protected already, the Court had to limit
the number of intervenors from the ranks of the delegates to the Convention who, more or
less, have legal interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose
Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in
their own right, have been allowed to intervene jointly. The Court feels that with such an
array of brilliant and dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their corresponding motions
for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed
by the other delegates and some private parties, the latter in representation of their minor
children allegedly to be affected by the result of this case with the records and the Court
acknowledges that they have not been without value as materials in the extensive study that
has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into
being by virtue of two resolutions of the Congress of the Philippines approved in its capacity
as a constituent assembly convened for the purpose of calling a convention to propose
amendments to the Constitution namely, Resolutions 2 and 4 of the joint sessions of
Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said
Convention were all elected under and by virtue of said resolutions and the implementing
legislation thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read as
follows:
SECTION 1. There is hereby called a convention to propose amendments
to the Constitution of the Philippines, to be composed of two elective
Delegates from each representative district who shall have the same
qualifications as those required of Members of the House of
Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different cities
and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its
inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization
of committees and other preparatory works over, as its first formal proposal to amend the
Constitution, its session which began on September 27, 1971, or more accurately, at about
3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No.
1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE
TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional
Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is
amended to as follows:
Section 1. Suffrage may be exercised by (male)
citizens of the Philippines not otherwise disqualified
by law, who are (twenty-one) EIGHTEEN years or over
and are able to read and write, and who shall have
resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least
six months preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of
the Philippines when approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or
on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of
P75,000.00 from its savings or from its unexpended funds for the expense
of the advanced plebiscite; provided, however that should there be no
savings or unexpended sums, the Delegates waive P250.00 each or the
equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
respondent Comelec "to help the Convention implement (the above) resolution." The said
letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted
as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise
known as the Constitutional Convention Act of 1971, may we call upon
you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that
it will hold the plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of separate
official ballots, election returns and tally sheets for the use of said
plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures
for the printing and shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same time
that the Commission will distribute its official and sample ballots to be
used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors'
statement of the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad Hoc
Committee to implement the Resolution.
This Committee issued implementing guidelines which were approved by
the President who then transmitted them to the Commission on
Elections.
 The Committee on Plebiscite and Ratification filed a report on the
progress of the implementation of the plebiscite in the afternoon of
October 7,1971, enclosing copies of the order, resolution and letters of
transmittal above referred to (Copy of the report is hereto attached as
Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention
approved a resolution authored by Delegate Antonio Olmedo of Davao
Oriental, calling for a recess of the Convention from November 1, 1971 to
November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and the
transcript of debate thereon are hereto attached as Annexes 9 and 9-A
Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24
submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the
other implementing resolutions thereof subsequently approved by the Convention have no
force and effect as laws in so far as they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city, provincial and municipal officials to be held
on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry
out the holding of the plebiscite directed by said resolutions are null and void, on the ground
that the calling and holding of such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may not be exercised by the Convention,
and that, under Section 1, Article XV of the Constitution, the proposed amendment in
question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down
the details of the plebiscite for the ratification of any amendment the Convention may deem
proper to propose is within the authority of the Convention as a necessary consequence and
part of its power to propose amendments and that this power includes that of submitting
such amendments either individually or jointly at such time and manner as the Convention
may direct in discretion. The Court's delicate task now is to decide which of these two poses
is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction.
They contend that the issue before Us is a political question and that the Convention being
legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts. In this connection, it is to be noted
that none of the respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in
their answer acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court
in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite
their being divided in their opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision they have quoted or would misapply
them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-
vis the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for
that matter, those of a constitutional convention called for the purpose of proposing
amendments to the Constitution, which concededly is at par with the former. A simple
reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel
any lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice
Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court
speaking through one of the leading members of the Constitutional Convention and
a respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution which was being submitted to the people for ratification
satisfied the three-fourths vote requirement of the fundamental law. The force of
this precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684,
Sept. 14, 1961). In the first we held that the officers and employees of the Senate
Electoral Tribunal are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum in the Senate; in the
third, we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act, on behalf of the party
having the second largest number of votes therein of two (2) Senators belonging to
the first party, as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible according
to the number of inhabitants of each province. Thus we rejected the theory,
advanced in these four (4) cases that the issues therein raised were political
questions the determination of which is beyond judicial review.
 Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress (Section 1, Art.
VI, Constitution of the Philippines). It is part of the inherent powers of the
people as the repository sovereignty in a republican state, such as ours (Section
1, Art. 11, Constitution of the Philippines) to make, and, hence, to amend their
own Fundamental Law. Congress may propose amendments to the Constitution
merely because the same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same, it is said that
Senators and members of the House of Representatives act, not as members of
Congress, but as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the Constitution, unlike
the people, when performing the same function, (Of amending the Constitution)
for their authority does not emanate from the Constitution they are the very
source of all powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final say on
whether or not their acts are within or beyond constitutional limits. Otherwise,
they could brush aside and set the same at naught, contrary to the basic tenet that
ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that the Constitution expressly
confers upon the Supreme Court, (And, inferentially, to lower courts.) the power to
declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite
the eminently political character of 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
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of
all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for
the purpose. Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass
of such powers can be co-extensive only with the purpose for which the convention was
called and as it may propose cannot have any effect as part of the Constitution until the same
are duly ratified by the people, it necessarily follows that the acts of convention, its officers
and members are not immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in everyone of its parts the existence
of the Convention notwithstanding, and operates even within the walls of that assembly.
While it is indubitable that in its internal operation and the performance of its task to
propose amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty
or property without due process of law, deny to anyone in this country the equal protection
of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass any resolution
providing for the taking of private property without just compensation or for the imposition
or exacting of any tax, impost or assessment, or declare war or call the Congress to a special
session, suspend the privilege of the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or between such individuals and the
state, in violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly
assert, much less exercise, in the light of the existing Constitution, the simple question arises,
should an act of the Convention be assailed by a citizen as being among those not granted to
or inherent in it, according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that somehow
somewhere the Power and duty to resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess that the integrated system of
government established by our founding fathers contains a wide vacuum no intelligent man
could ignore, which is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision
of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and
reinforces the irrefutable logic and wealth of principle in the opinion written for a unanimous
Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial
departments of the government. The overlapping and interlacing of functions and
duties between the several departments, however, sometimes makes it hard to say
where the one leaves off and the other begins. In times of social disquietude or
political excitement, the great landmark of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or
constituent units thereof.
As any human production our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment and the principles of good
government mere political apothegms. Certainly the limitations and restrictions
embodied in our Constitution are real as they should be in any living Constitution.
In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of
its historical origin and development there, has been set at rest by popular
acquiescence for a period of more than one and half centuries. In our case, this
moderating power is granted, if not expressly, by clear implication from section 2
of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has provided
for the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in
what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to strike conclusions unrelated to actualities. Narrowed
as its functions is in this manner the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes
must be ever ready to mark, their voices to pronounce ... aggression on the
authority of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in the crucible
of Filipino minds and hearts than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution adopted on December 9,
1935, fixed said date as the last day for the filing of protests against the election,
returns and qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect
of cutting off the power of the Electoral Commission to entertain protests against
the election, returns and qualifications of members of the National Assembly,
submitted after December 3, 1935 then the resolution of the Electoral Commission
of December 9, 1935, is mere surplusage and had no effect. But, if, as contended
by the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on the one hand and
the Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of
our own, upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to determine all
contests relating to the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be interfered with,
when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that
it is not subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting claims of
authority under the fundamental law between departmental powers and agencies
 of the government are necessarily determined by the judiciary in justiciable and
appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our Constitution adopted the American
type where the written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the American
example, provisions have been inserted in their constitutions prohibiting the courts
from exercising the power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically their function. For
instance, the Constitution of Poland of 1921 expressly provides that courts shall
have no power to examine the validity of statutes (art. 81, Chap. IV). The former
Austrian Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this power. This is true
in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2
and 3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of
1931) especial constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority
between two agencies created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict? And if the conflict
were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason, and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject
matter of the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing
regular departments of the government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other constitutionally
created independent body, like the electoral tribunals in Congress, the Comelec and the
Constituent assemblies constituted by the House of Congress, on the other. We see no
reason of logic or principle whatsoever, and none has been convincingly shown to Us by any
of the respondents and intervenors, why the same ruling should not apply to the present
Convention, even if it is an assembly of delegate elected directly by the people, since at best,
as already demonstrated, it has been convened by authority of and under the terms of the
present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over
the present case. It goes without saying that We do this not because the Court is superior to
the Convention or that the Convention is subject to the control of the Court, but simply
because both the Convention and the Court are subject to the Constitution and the rule of
law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the
power as it is the solemn duty of the Court, under the existing Constitution to resolve the
issues in which petitioner, respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the
powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a
plebiscite for the ratification of the proposed amendment reducing to eighteen years the age
for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the
Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution
and the subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate
and unequivocal statement of the real issue which the Court is called upon to resolve.
Petitioner has very clearly stated that he is not against the constitutional extension of the
right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or
sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended
by him to prevent that the proposed amendment here involved be submitted to the people
for ratification, his only purpose in filing the petition being to comply with his sworn duty to
prevent, Whenever he can, any violation of the Constitution of the Philippines even if it is
committed in the course of or in connection with the most laudable undertaking. Indeed, as
the Court sees it, the specific question raised in this case is limited solely and only to the
point of whether or not it is within the power of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment proposed in the abovequoted
Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the
subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial
notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of
considering other reforms or amendments affecting other parts of the existing Constitution;
and, indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein
proposed "shall be without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the amended section or
on other portions of the entire Constitution." In other words, nothing that the Court may say
or do, in this case should be understood as reflecting, in any degree or means the individual
or collective stand of the members of the Court on the fundamental issue of whether or not
the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us
now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth
have not blinded them to the absolute necessity, under the fundamental principles of
democracy to which the Filipino people is committed, of adhering always to the rule of law.
Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct
or approach in respect of the problem before Us. The Constitutional Convention of 1971
itself was born, in a great measure, because of the pressure brought to bear upon the
Congress of the Philippines by various elements of the people, the youth in particular, in their
incessant search for a peaceful and orderly means of bringing about meaningful changes in
the structure and bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the preservation and
protection of our natural resources and the national patrimony, as an alternative to violent
and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of
enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the
streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the
people, do not want confusion and disorder, anarchy and violence; what they really want are
law and order, peace and orderliness, even in the pursuit of what they strongly and urgently
feel must be done to change the present order of things in this Republic of ours. It would be
tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow
itself in deciding this case to be carried astray by considerations other than the imperatives
of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a
larger measure than when it binds other departments of the government or any other official
or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor
to the Constitution, by interpreting and construing its provisions in appropriate cases with
the proper parties, and by striking down any act violative thereof. Here, as in all other cases,
We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional
reforms, to the point of being convinced that meaningful change is the only alternative to a
violent revolution, this Court would be the last to put any obstruction or impediment to the
work of the Constitutional Convention. If there are respectable sectors opining that it has not
been called to supplant the existing Constitution in its entirety, since its enabling provision,
Article XV, from which the Convention itself draws life expressly speaks only of amendments
which shall form part of it, which opinion is not without persuasive force both in principle
and in logic, the seemingly prevailing view is that only the collective judgment of its members
as to what is warranted by the present condition of things, as they see it, can limit the extent
of the constitutional innovations the Convention may propose, hence the complete
substitution of the existing constitution is not beyond the ambit of the Convention's
authority. Desirable as it may be to resolve, this grave divergence of views, the Court does
not consider this case to be properly the one in which it should discharge its constitutional
duty in such premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them squarely passed
upon by the Court do not necessarily impose upon Us the imperative obligation to express
Our views thereon. The Court considers it to be of the utmost importance that the
Convention should be untrammelled and unrestrained in the performance of its
constitutionally as signed mission in the manner and form it may conceive best, and so the
Court may step in to clear up doubts as to the boundaries set down by the Constitution only
when and to the specific extent only that it would be necessary to do so to avoid a
constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved
by the Supreme Court only when there is no alternative but to do it, and this rule is founded
precisely on the principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional Convention
stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the
Convention came into being by a call of a joint session of Congress pursuant to Section I of
Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as
to matters not related to its internal operation and the performance of its assigned mission
to propose amendments to the Constitution, the Convention and its officers and members
are all subject to all the provisions of the existing Constitution. Now We hold that even as to
its latter task of proposing amendments to the Constitution, it is subject to the provisions of
Section I of Article XV. This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with
the 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.
The ultimate question, therefore boils down to this: Is there any limitation or condition in
Section 1 of Article XV of the Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and limitation that all the amendments to be
proposed by the same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention propose We hold that the plebiscite
being called for the purpose of submitting the same for ratification of the people on
November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all
acts of the Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says
distinctly that either Congress sitting as a constituent assembly or a convention called for the
purpose "may propose amendments to this Constitution," thus placing no limit as to the
number of amendments that Congress or the Convention may propose. The same provision
also as definitely provides that "such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification," thus leaving no room for doubt as to how
many "elections" or plebiscites may be held to ratify any amendment or amendments
proposed by the same constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of
this provision. As already stated, amending the Constitution is as serious and important an
undertaking as constitution making itself. Indeed, any amendment of the Constitution is as
important as the whole of it if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the government it
establishes, on the one hand, and adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties, ideology, social ideals, and national and
nationalistic policies and aspirations of the people, on the other. lt is inconceivable how a
constitution worthy of any country or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose.
Once the original constitution is approved, the part that the people play in its amendment
becomes harder, for when a whole constitution is submitted to them, more or less they can
assumed its harmony as an integrated whole, and they can either accept or reject it in its
entirety. At the very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of all or any of its
parts and of the document as a whole. And so also, when an amendment is submitted to
them that is to form part of the existing constitution, in like fashion they can study with
deliberation the proposed amendment in relation to the whole existing constitution and or
any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the
fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of
reference is provided the voter, as to what finally will be concomitant qualifications that will
be required by the final draft of the constitution to be formulated by the Convention of a
voter to be able to enjoy the right of suffrage, there are other considerations which make it
impossible to vote intelligently on the proposed amendment, although it may already be
observed that under Section 3, if a voter would favor the reduction of the voting age to
eighteen under conditions he feels are needed under the circumstances, and he does not see
those conditions in the ballot nor is there any possible indication whether they will ever be or
not, because Congress has reserved those for future action, what kind of judgment can he
render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the
fundamental principles of the constitution the Convention will be minded to approve. To be
more specific, we do not have any means of foreseeing whether the right to vote would be of
any significant value at all. Who can say whether or not later on the Convention may decide
to provide for varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the Convention is precisely
on the verge of introducing substantial changes, if not radical ones, in almost every part and
aspect of the existing social and political order enshrined in the present Constitution. How
can a voter in the proposed plebiscite intelligently determine the effect of the reduction of
the voting age upon the different institutions which the Convention may establish and of
which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the Constitution with which it
has to form a harmonious whole. In the context of the present state of things, where the
Convention has hardly started considering the merits of hundreds, if not thousands, of
proposals to amend the existing Constitution, to present to the people any single proposal or
a few of them cannot comply with this requirement. We are of the opinion that the present
Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can base their judgment on.
We reject the rationalization that the present Constitution is a possible frame of reference,
for the simple reason that intervenors themselves are stating that the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed
plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of
the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal
to allow these eighteen years old to vote. But like the Convention, the Court has its own
duties to the people under the Constitution which is to decide in appropriate cases with
appropriate parties Whether or not the mandates of the fundamental law are being
complied with. In the best light God has given Us, we are of the conviction that in providing
for the questioned plebiscite before it has finished, and separately from, the whole draft of
the constitution it has been called to formulate, the Convention's Organic Resolution No. 1
and all subsequent acts of the Convention implementing the same violate the condition in
Section 1, Article XV that there should only be one "election" or plebiscite for the ratification
of all the amendments the Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding that under Section 1,
Article XV of the Constitution, the same should be submitted to them not separately from
but together with all the other amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of
the Constitutional Convention of 1971 and the implementing acts and resolutions of the
Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as
well as the resolution of the respondent Comelec complying therewith (RR Resolution No.
695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief
Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking
any action in compliance with the said organic resolution. In view of the peculiar
circumstances of this case, the Court declares this decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
FACTS:
The 1971 Constitutional Convention came into being by virtue of two resolutions of the
Congress approved in its capacity as a constituent assembly convened for the purpose of
calling a convention to propose amendments to the Constitution. After election of delegates
held on November 10, 1970, the Convention held its inaugural session on June 1, 1971. In the
morning of September 28, 1970, the Convention approved Organic Resolution No. 1 which is
entitled as, "A RESOLUTION AMENDING SECTION 1 OF ARTICLE V OF THE CONSTITUTION SO
AS TO LOWER THE VOTING AGE TO 18." On September 30, 1971, the COMELEC "resolved" to
follow the mandate of the Convention, that it will hold the said plebiscite together with the
senatorial elections on November 8, 1971 .
Petitioner, Arturo Tolentino, filed a petition for prohibition, its main thrust being that Organic
Resolution No. 1 and the necessary implementing resolutions subsequently approved have
no force and effect as laws in so far as they provide for the holding of a plebiscite co-incident
with the senatorial elections, 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 Article XV Section 1 of the 1935
Constitution, the proposed amendment in question cannot be presented to the people
for ratification separately from each and all other amendments to be drafted and proposed
by the Constitution.
ISSUE:
Whether or not the Organic Resolution No. 1 of the 1971 Constitutional Convention violative
to the Constitution.
HELD:
NO. All the amendments to be proposed by the same Convention must be submitted to the
people in a single "election" or plebiscite. In order that a plebiscite for the ratification of
a Constitutional amendment 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 but
as well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the present context, where the Convention has hardly started
considering the merits, 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.
FACTS:
After the election of delegates to the Constitutional Convention held on November 10, 1970,
the convention held its inaugural session on June 1, 1971. On the early morning of
September 28, 1971, the Convention approved Organic Resolution No. 1 which seeks to
amend Section 1 of Article V of the Constitution, lowering the voting age to 18. On
September 30, 1971, COMELEC resolved to inform the Constitutional Convention that it will
hold the plebiscite together with the senatorial elections on November 8, 1971. Arturo
Tolentino filed a petition for prohibition against COMELEC and prayed that Organic
Resolution No. 1 and acts in obedience to the resolution be null and void.
ISSUE:
1. Does the court have jurisdiction over the case?
2. Is the Organic Resolution No. 1 constitutional?
HELD:
1. The case at bar is justiciable. As held in Gonzales vs. Comelec, the issue whether or not a
resolution of Congress, acting as a constituent assembly, violates the constitution is a
justiciable one and thus subject to judicial review. The jurisdiction is not because the Court is
superior to the Convention but they are both subject to the Constitution.
2. The act of the Convention calling for a plebiscite on a single amendment in Organic
Resolution No. 1 violated Sec. 1 of Article XV of the Constitution which states that all
amendments must be submitted to the people in a single election or plebiscite. Moreover,
the voter must be provided sufficient time and ample basis to assess the amendment in
relation to the other parts of the Constitution, not separately but together.
 EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in
their capacities as founding members of the People's Initiative for Reforms, Modernization
and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65
of the Rules of Court is the right of the people to directly propose amendments to the
Constitution through the system of initiative under Section 2 of Article XVII of the 1987
Constitution. Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars, before the drafting
of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original
proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of
the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the
1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of,
the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its
members and (2) by a constitutional convention. 4 For this and the other reasons hereafter
discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift
Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein
Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's
Initiative, 6 a group of citizens desirous to avail of the system intended to institutionalize
people power; that he and the members of the Movement and other volunteers intend to
exercise the power to directly propose amendments to the Constitution granted under
Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted
in proceedings under the control and supervision of the COMELEC; that, as required in
COMELEC Resolution No. 2300, signature stations shall be established all over the country,
with the assistance of municipal election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first 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, 7Section 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 Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it
failed to provide any subtitle on initiative on the Constitution, unlike in the other
modes of initiative, which are specifically provided for in Subtitle II and Subtitle III.
This deliberate omission indicates that the matter of people's initiative to amend
the Constitution was left to some future law. Former Senator Arturo Tolentino
stressed this deficiency in the law in his privilege speech delivered before the
Senate in 1994: "There is not a single word in that law which can be considered as
implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national
and local laws, is ultra vires insofar as initiative on amendments to the Constitution
is concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither
the COMELEC nor any other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege
that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded
by PIRMA would entail expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of additional pesos in
expenses which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised demands that
this petition for prohibition be settled promptly and definitely, brushing aside technicalities
of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides,
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition
within a non-extendible period of ten days from notice; and (b) issued a temporary
restraining order, effective immediately and continuing until further orders, enjoining public
respondent COMELEC from proceeding with the Delfin Petition, and private respondents
Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the
petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY
FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE
HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE
PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF
THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF
THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS
A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
 METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES
OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which
starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft
'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he
filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was
legally necessary to start the signature campaign to amend the Constitution or to put the
movement to gather signatures under COMELEC power and function. On the substantive
allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of
a subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast
in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek
to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate
of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if
there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any
event, fund requirements for initiative will be a priority government expense because it will
be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the
Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the
power to propose amendments to the Constitution. Likewise, its Section 5
repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included
in the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein
was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to
the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order;
(b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining
Order filed by private respondents through Atty. Quadra, as well as the latter's Manifestation
stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and
the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention
not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30
a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement
of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in Intervention, which was later
replaced by an Amended Petition in Intervention wherein they contend that:
 (1) The Delfin proposal does not involve a mere amendment to, but a revision of,
the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would
involve a change from a political philosophy that rejects unlimited tenure to one
that accepts unlimited tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on synchronization of elections
and on the State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the
Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for
all other national and local elective officials are based on the philosophy of
governance, "to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of
political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the
common good"; hence, to remove the term limits is to negate and nullify the noble
vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the people's initiative on amendments to the Constitution. It fails
to state (a) the proper parties who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the role of the COMELEC in
the verification of the signatures and the sufficiency of the petition, (h) the appeal
from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set
a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's
right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17
and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship
speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the
respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and
to order its publication because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What
vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signed by the required number of registered voters. He also
submits that the proponents of a constitutional amendment cannot avail of the authority and
resources of the COMELEC to assist them is securing the required number of signatures, as
the COMELEC's role in an initiative on the Constitution is limited to the determination of the
sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention
filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed
by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the
Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file
within a nonextendible period of five days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to comment thereon
within a nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal
issues, which the Court formulated in light of the allegations and arguments raised in the
pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
 2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement
and volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition
when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their
respective memoranda within twenty days and requested intervenor Senator Roco to submit
copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations
and arguments in the main Petition. It further submits that the COMELEC should have
dismissed the Delfin Petition for failure to state a sufficient cause of action and that the
Commission's failure or refusal to do so constituted grave abuse of discretion amounting to
lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the
Record of the House of Representatives relating to the deliberations of House Bill No. 21505,
as well as the transcripts of stenographic notes on the proceedings of the Bicameral
Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on
House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter
filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue
which appears to pose a prejudicial procedural question.
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 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
implementation. Stated otherwise, while the Constitution has recognized
or granted that right, the people cannot exercise it if Congress, for
whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory
Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed
Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

A party's standing before this Court is a procedural technicality which it may, in the (a) by the National Assembly upon a vote of three-fourths of all its members; or
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
(b) by a constitutional convention; or
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. (c) directly by the people themselves thru initiative as provided for in Article___ Section
___of the Constitution. 31
II
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;
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
thus:
AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO
COVER THAT SYSTEM.
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
Section 2 of Article XVII of the Constitution provides:
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
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the committee report. With the permission of the Members, may I quote Section 2:
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
The people may, after five years from the date of the last plebiscite held, directly
by at least three per centum of the registered voters therein. No amendment under
propose amendments to this Constitution thru initiative upon petition of at least
this section shall be authorized within five years following the ratification of this
ten percent of the registered voters.
Constitution nor oftener than once every five years thereafter.

This completes the blanks appearing in the original Committee Report No. 7. 32
The Congress shall provide for the implementation of the exercise of this right.

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
the legislature. Thus:
Constitutional Commission, stated:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

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 First, on Section 1 on the matter of initiative upon petition of at least 10
action. 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?
Bluntly stated, the right of the people to directly propose amendments to
the Constitution through the system of initiative would remain entombed MR. SUAREZ. That is right, Madam President.
in the cold niche of the Constitution until Congress provides for its
FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does
not pass the necessary implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee hearing, especially with
respect to the budget appropriations which would have to be legislated so that the plebiscite
could be called. We deemed it best that this matter be left to the legislature. The Gentleman
is right. In any event, as envisioned, no amendment through the power of initiative can be
called until after five years from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise of this initiative power
would be after five years. It is reasonably expected that within that five-year period, the
National Assembly can come up with the appropriate rules governing the exercise of this
power.
FR. BERNAS. Since the matter is left to the legislature the details on how this is to be
carried out is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a
body could propose that amendment, maybe individually or collectively, if it fails to muster
the three-fourths vote in order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an initiative.
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest
constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of
Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the
Constitution is source of all legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a
separate article in the constitution that would specifically cover the process and the modes
of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again
concede to the legislature the process or the requirement of determining the mechanics of
amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the
National Assembly, not unless we can incorporate into this provision the mechanics that
would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to
proposals to AMEND not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that thismatter 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
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as
a separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by
the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas the process of
initiation to amend, which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner
Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with
the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into
account the modifications submitted by the sponsor himself and the honorable
Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2.
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of
the sense contained in Section 2 of our completed Committee Report No. 7, we accept the
proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to
set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from
asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for
submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words,
none of the procedures to be proposed by the legislative body must diminish or impair the
right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed
be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1
refers to "amendment." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an
amendment to the Constitution. To amend a Constitution would ordinarily require a proposal
by the National Assembly by a vote of three-fourths; and to call a constitutional convention
would require a higher number. Moreover, just to submit the issue of calling a constitutional
convention, a majority of the National Assembly is required, the import being that the
process of amendment must be made more rigorous and difficult than probably initiating an
ordinary legislation or putting an end to a law proposed by the National Assembly by way of
a referendum. I cannot agree to reducing the requirement approved by the Committee on
the Legislative because it would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by
way of an amendment, when the Commission shall take up the Article on the Legislative or
on the National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as
follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second
reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
 nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended
by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase
"by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide
for the implementation of the exercise of this right. 44 This amendment was approved and is
the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution
under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who
answer the question in the affirmative, like the private respondents and intervenor Senator
Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right
than through the passage of a statute or legislative act. This is the essence or rationale of the
last minute amendment by the Constitutional Commission to substitute the last paragraph of
Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the
exercise of this right.
with
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 50and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for
the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people under a system
of initiative and referendum to directly propose, enact, approve or reject,
in whole or in part, the Constitution, laws, ordinances, or resolutions
passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed. (Emphasis
supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That
word is neither germane nor relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals to AMEND.
The people are not accorded the power to "directly propose, enact, approve, or
reject, in whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from
Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local
initiative and referendum and appropriately used the phrases "propose and enact," "approve
or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems of initiative,
and that Section 5 (Requirements) restates the constitutional requirements as to the
percentage of the registered voters who must submit the proposal. But unlike in the case of
the other systems of initiative, the Act does not provide for the contents of a petition
for initiative on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be. It does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved
or rejected, amended or repealed, as the case may be;
c.2 the proposition;
 c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred
(100) words which shall be legibly written or printed at the top of every
page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and
for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply means that the main thrust of
the Act is initiative and referendum on national and local laws. If Congress intended R.A. No.
6735 to fully provide for the implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, considering that in the order of
things, the primacy of interest, or hierarchy of values, the right of the people to directly
propose amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is
subsumed under the subtitle on National Initiative and Referendum because it is national in
scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local
Initiative and Referendum) leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and character. It is "national initiative,"
if what is proposed to be adopted or enacted is a national law, or a law which only Congress
can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law,
ordinance, or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of the Act,
which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact
a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution
or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on
initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions
not germane to the subtitle on National Initiative and Referendum are placed therein, like (1)
paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the
votes cast in an election called for the purpose shall become effective
fifteen (15) days after certification and proclamation of the Commission.
(Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization,
as defined by law, may file a petition for indirect initiative with the House
of Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum,
which could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative
and Referendum is misplaced, 54 since the provision therein applies to both national and local
initiative and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want of
capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the
details in the implementation of initiative and referendum on national and local legislation
thereby giving them special attention, it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Anent the initiative on national legislation, the
Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the
petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for
its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of
general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for the
petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of
the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government
unit concerned as to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the
registered voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all
of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and includes it in the enumeration of the three
systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the
proposition in an initiative on the Constitution may be approved or rejected by the people;
(d) reiterates the constitutional requirements as to the number of voters who should sign the
petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount
system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative
on amendments to the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be
cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be
necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as
follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no. 5
above. However, in every case of permissible delegation, there must be a showing that the
delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein
the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions. 61 A sufficient standard is one
which defines legislative policy, marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances under which the legislative command
is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to directly propose amendments to the
Constitution through the system of initiative. It does not have that power under R.A. No.
6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution
is misplaced, for the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where
subordinate legislation is authorized and which satisfies the "completeness" and the
"sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of
Congress to implement the right to initiate constitutional amendments, or that it has validly
vested upon the COMELEC the power of subordinate legislation and that COMELEC
Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of
discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a
petition for initiative on the Constitution must be signed by at least 12% of the total number
of registered voters of which every legislative district is represented by at least 3% of the
registered voters therein. The Delfin Petition does not contain signatures of the required
number of voters. Delfin himself admits that he has not yet gathered signatures and that the
purpose of his petition is primarily to obtain assistance in his drive to gather signatures.
Without the required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The
petition then is the initiatory pleading. Nothing before its filing is cognizable by the
COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the
filing of such petition are (1) to prescribe the form of the petition; 63(2) to issue through its
Election Records and Statistics Office a certificate on the total number of registered voters in
each legislative district; 64 (3) to assist, through its election registrars, in the establishment of
signature stations; 65 and (4) to verify, through its election registrars, the signatures on the
basis of the registry list of voters, voters' affidavits, and voters' identification cards used in
the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC
Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The
respondent Commission must have known that the petition does not fall under any of the
actions or proceedings under the COMELEC Rules of Procedure or under Resolution No.
2300, for which reason it did not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That petition was nothing more
than a mere scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted
without jurisdiction or with grave abuse of discretion and merely wasted its time, energy,
and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the
term limits of elective national and local officials is an amendment to, and not a revision of,
the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution
should no longer be kept in the cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the constitutional mandate to
provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to
the Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-
96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against
the Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
FACTS:
Private respondent filed with public respondent Commission on Elections (COMELEC) a
Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples
Initiative (Delfin Petition) 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; and (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 asserted that R.A.
No. 6735 governs the conduct of initiative to amend the Constitution and COMELEC
Resolution No. 2300 is a valid exercise of delegated powers. Petitioners contend that R.A. No.
6375 failed to be an enabling law because of its deficiency and inadequacy, and COMELEC
Resolution No. 2300 is void.
ISSUE:
Whether or not (1) the absence of subtitle for such initiative is not fatal, (2) R.A. No. 6735 is
adequate to cover the system of initiative on amendment to the Constitution, and (3)
COMELEC Resolution No. 2300 is valid. .
HELD:
NO. Petition (for prohibition) was granted. The conspicuous silence in subtitles simply means
that the main thrust of the Act is initiative and referendum on national and local laws. R.A.
No. 6735 failed to provide sufficient standard for subordinate legislation. Provisions
COMELEC Resolution No. 2300 prescribing rules and regulations on the conduct of initiative
or amendments to the Constitution are declared void.
RATIO:
Subtitles are intrinsic aids for construction and interpretation. R.A. No. 6735 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 peoples initiative to amend the Constitution was left to some future law.
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; (2) to issue through its
Election Records and Statistics Office a certificate on the total number of registered voters in
each legislative district; (3) to assist, through its election registrars, in the establishment of
signature stations; 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.
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.
SEPARATE OPINIONS:
PUNO, 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. 6735 and COMELEC Resolution No. 2300 are legally defective and cannot
implement the peoples 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. (MELO
and MENDOZA concur)
VITUG, concurring and dissenting
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.
[T]he 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.
FRANCISCO, concurring and dissenting
There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly
and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No.
6735 is inadequate to cover the system of initiative on amendments to the Constitution.
(MELO and MENDOZA concur)
petitioners herein Senator Santiago, Alexander Padilla, and Isabel Ongpin filed this civil action
for prohibition under Rule 65 of the Rules of Court against COMELEC and the Delfin petition
rising the several arguments, such as the following:
(1) The constitutional provision on peoples initiative to amend the constitution can only be
implemented by law to be passed by Congress. No such law has been passed;

PANGANIBAN, concurring and dissenting (2) The peoples initiative is limited to amendments to the Constitution, not to revision
thereof. Lifting of the term limits constitutes a revision, therefore it is outside the power of
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds peoples initiative. The Supreme Court granted the Motions for Intervention.
that:
Issues:

(1) Whether or not Sec. 2, Art. XVII of the 1987 Constitution is a self-executing provision.(2)
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining Whether or not COMELEC Resolution No. 2300 regarding the conduct of initiative on
the initiatory Delfin Petition. 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
(2) While the Constitution allows amendments to be directly proposed by the people
officials would constitute a revision or an amendment of the Constitution.
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 Held:
to the Constitution is concerned.
Sec. 2, Art XVII of the Constitution is not self executory, thus, without implementing
(3) Comelec Resolution No. 2330, insofar as it prescribes rules and regulations on the legislation the same cannot operate. Although the Constitution has recognized or granted
conduct of initiative on amendments to the Constitution, is void. the right, the people cannot exercise it if Congress does not provide for its implementation.
The portion of COMELEC Resolution No. 2300 which prescribes rules and regulations on the
I concur with the first item above. Until and unless an initiatory petition can show the
conduct of initiative on amendments to the Constitution, is void. It has been an established
required number of signatures in this case, 12% of all the registered voters in the
rule that what has been delegated, cannot be delegated (potestas delegata non delegari
Philippines with at least 3% in every legislative district no public funds may be spent and
potest). The delegation of the power to the COMELEC being invalid, the latter cannot validly
no government resources may be used in an initiative to amend the Constitution. Verily, the
promulgate rules and regulations to implement the exercise of the right to peoples initiative.
Comelec cannot even entertain any petition absent such signatures. However, I dissent most
The lifting of the term limits was held to be that of a revision, as it would affect other
respectfully from the majoritys two other rulings.
provisions of the Constitution such as the synchronization of elections, the constitutional
guarantee of equal access to opportunities for public service, and prohibiting political
Facts:
dynasties. A revision cannot be done by initiative. However, considering the Courts decision
Private respondent Atty. Jesus Delfin, president of Peoples Initiative for Reforms, in the above Issue, the issue of whether or not the petition is a revision or amendment has
Modernization and Action (PIRMA), filed with COMELEC a petition to amend the constitution become academic.
to lift the term limits of elective officials, through Peoples Initiative. He based this petition
on Article XVII,Sec. 2 of the 1987 Constitution, which provides for the right of the people to
exercise the power to directly propose amendments to the Constitution. Subsequently the
COMELEC issued an order directing the publication of the petition and of the notice of
hearing and thereafter set the case for hearing. At the hearing, Senator Roco, the IBP,
Demokrasya-Ipagtanggol ang Konstitusyon, Public Interest Law Center, and Laban ng
Demokratikong Pilipino appeared as intervenors-oppositors. Senator Roco filed a motion to
dismiss the Delfin petition on the ground that one which is cognizable by the COMELEC. The
 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.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission
on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987
Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering
signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the
Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their
initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the
Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each legislative
district represented by at least three per centum (3%) of its registered voters. The Lambino
Group also claimed that COMELEC election registrars had verified the signatures of the 6.3
million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections
1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive
Department)5 and by adding Article XVIII entitled "Transitory Provisions."6 These proposed
changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due publication of their petition,
the COMELEC should submit the following proposition in a plebiscite for the voters'
ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC
indicating modifications in the proposed Article XVIII (Transitory Provisions) of their
initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
Group's petition for lack of an enabling law governing initiative petitions to amend the
Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the
COMELEC to give due course to their initiative petition. The Lambino Group contends that
the COMELEC committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group claims
that Santiago binds only the parties to that case, and their petition deserves cognizance as
an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent
COMELEC Commissioners to show cause why they should not be cited in contempt for the
COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition
despite the permanent injunction in Santiago. The Court treated the Binay Group's petition
as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the
petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor
General proposed that the Court treat RA 6735 and its implementing rules "as temporary
devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing
the Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the
COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand,
the opposing intervenors11 hold the contrary view and maintain that Santiago is a binding
precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file
the petition; (2) the validity of the signature gathering and verification process; (3) the
Lambino Group's compliance with the minimum requirement for the percentage of voters
supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4)
the nature of the proposed changes as revisions and not mere amendments as provided
under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's
compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to
only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties' memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to implement the initiative clause
on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based alone on the Lambino
Group's glaring failure to comply with the basic requirements of the Constitution. For
following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the
Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows
a people's initiative to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters of which every legislative district must be represented
by at least three per centum of the registered voters therein. x x x x (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an
amendment "directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to
them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before" they sign
such proposal. The framers plainly stated that "before they sign there is already a draft
shown to them." The framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it around for
signature."
The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a
petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the people through initiative upon a
petition" only if the people sign on a petition that contains the full text of the proposed
amendments.
The full text of the proposed amendments may be either written on the face of the petition,
or attached to it. If so attached, the petition must state the fact of such attachment. This is
an assurance that every one of the several millions of signatories to the petition had seen the
full text of the proposed amendments before signing. Otherwise, it is physically impossible,
given the time constraint, to prove that every one of the millions of signatories had seen the
full text of the proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from
the United States where various State constitutions incorporate an initiative clause. In almost
all States15 which allow initiative petitions, the unbending requirement is that the people
must first see the full text of the proposed amendments before they sign to signify their
assent, and that the people must sign on an initiative petition that contains the full text of
the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of
various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of
Massachusetts, affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents of
an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not
be to the signer's liking. This danger seems particularly acute when, in this case,
the person giving the description is the drafter of the petition, who obviously has
a vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of
full text of amended constitutional provision required because it is "essential for
the elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and
effect of that which is proposed" and failure to do so is "deceptive and misleading" which
renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set
forth the full text of the proposed amendments. However, the deliberations of the framers of
our Constitution clearly show that the framers intended to adopt the relevant American
jurisprudence on people's initiative. In particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the people must first see the
full text of the proposed amendments before they sign, and that the people must sign on a
petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
and Referendum Act that the Lambino Group invokes as valid, requires that the people must
sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents
secure the signatures in their private capacity and not as public officials. The proponents are
not disinterested parties who can impartially explain the advantages and disadvantages of
the proposed amendments to the people. The proponents present favorably their proposal
to the people and do not present the arguments against their proposal. The proponents, or
their supporters, often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements
in gathering the signatures. The proponents bear the burden of proving that they complied
with the constitutional requirements in gathering the signatures - that the petition
contained, or incorporated by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the
paper that the people signed as their initiative petition. The Lambino Group submitted to this
Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 when
they filed their Memorandum on 11 October 2006. The signature sheet with this Court during
the oral arguments was the signature sheet attached21 to the opposition in intervention filed
on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached
to the Lambino Group's Memorandum are the same. We reproduce below the signature
sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
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 Name Address Birthdate Signat
Number
Last Name, First Name, MM/DD/YY
M.I.
1
 2 The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present
3 petition. However, the "Official Website of the Union of Local Authorities of the
4
5
6
7
8 COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
9 REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
10
_________________ _________________
Barangay Official Witness
(Print Name and Sign) (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
Bicameral-Presidential to the Unicameral-Parliamentary system of government. The
signature sheet does not show to the people the draft of the proposed changes before they
are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that
the framers of the Constitution envisioned when they formulated the initiative clause in
Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from
February to August 2006, the Lambino Group circulated, together with the signature sheets,
printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006
with the COMELEC. When asked if his group also circulated the draft of their amended
petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they
circulated both. However, Atty. Lambino changed his answer and stated that what his group
circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25
August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30
August 2006 amended petition almost seven months earlier in February 2006 when they
started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of
the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with
the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal
capacity as a registered voter, for and on behalf of the Union of Local Authorities
of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached,
and as representative of the mass of signatories hereto. (Emphasis supplied)
Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
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
Witness
People's Consultative Commission on Charter Change;
(Print Name and Sign)
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. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through people's initiative and referendum as a mode of
amending the 1987 Constitution." The proposals of the Consultative Commission24 are vastly
different from the proposed changes of the Lambino Group in the 25 August 2006 petition or
30 August 2006 amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of
the existing Constitution, from the Preamble to the Transitory Provisions. The proposed
revisions have profound impact on the Judiciary and the National Patrimony provisions of the
existing Constitution, provisions that the Lambino Group's proposed changes do not touch.
The Lambino Group's proposed changes purport to affect only Articles VI and VII of the
existing Constitution, including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months
before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with
the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the
Lambino Group caused the circulation of the draft petition, together with the signature
sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution
No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft
petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at
all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino
Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and
paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and
failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the
amended petition was what they had shown to the people during the February to August
2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25 August
2006 "inaccurately stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC that they circulated printed copies of the draft petition
together with the signature sheets. Likewise, the Lambino Group did not allege in their
present petition before this Court that they circulated printed copies of the draft petition
together with the signature sheets. The signature sheets do not also contain any indication
that the draft petition is attached to, or circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino
Group first claimed that they circulated the "petition for initiative filed with the COMELEC,"
thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of
the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.]
Thus, the registered voters who signed the signature sheets circulated together
with the petition for initiative filed with the COMELEC below, are presumed to
have understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative
filed with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar
of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had
pointed out that the signature sheets did not contain the text of the proposed changes. In
their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for
initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino
finally stated during the oral arguments that what they circulated was the draft of
the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did
not read the measure attached to a referendum petition cannot question his signature on
the ground that he did not understand the nature of the act." The Lambino Group quotes an
authority that cites a proposed change attached to the petition signed by the people. Even
the authority the Lambino Group quotes requires that the proposed change must be
attached to the petition. The same authority the Lambino Group quotes requires the people
to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be
incorporated with, or attached to, the initiative petition signed by the people. In the present
initiative, the Lambino Group's proposed changes were not incorporated with, or attached
to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug
from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February
to August 2006 during the signature-gathering period, the draft of the petition or amended
petition they filed later with the COMELEC. The Lambino Group are less than candid with this
Court in their belated claim that they printed and circulated, together with the signature
sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group
circulated the amended petition during the signature-gathering period, the Lambino Group
admitted circulating only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft
petition but he could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000
copies because he himself caused the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino
Group expressly admits that "petitioner Lambino initiated the printing and reproduction of
100,000 copies of the petition for initiative x x x."25 This admission binds the Lambino
Group and establishes beyond any doubt that the Lambino Group failed to show the full
text of the proposed changes to the great majority of the people who signed the signature
sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with
certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each signature
sheet, only 100,000 signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed each of these 100,000
signature sheets with the attached petition, the maximum number of people who saw the
petition before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a
great majority of the 6.3 million signatories to have seen the petition before they signed the
signature sheets. The inescapable conclusion is that the Lambino Group failed to show to
the 6.3 million signatories the full text of the proposed changes. If ever, not more than one
million signatories saw the petition before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the
proposed changes, either on the face of the signature sheets, or as attachment with an
indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this
during the oral arguments, and this admission binds the Lambino Group. This fact is also
obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so
include the text of the proposed changes in the signature sheets renders the initiative void
for non-compliance with the constitutional requirement that the amendment must be
"directly proposed by the people through initiative upon a petition." The signature sheet is
not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not
see the full text of the proposed changes before signing. They could not have known the
nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members
of Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members,
who are almost all the present members of Congress, decide to call for new
parliamentary elections. Thus, the members of the interim Parliament will
determine the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's
signature sheets. The people who signed the signature sheets had no idea that they were
proposing these amendments. These three proposed changes are highly controversial. The
people could not have inferred or divined these proposed changes merely from a reading or
rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would
be held during the 2007 local elections if the proposed changes were ratified before the
2007 local elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended
petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members
of Parliament, which shall be synchronized and held simultaneously with the
election of all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the elections
for the regular Parliament shall be held simultaneously with the local elections without
specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes,
could have easily written the word "next" before the phrase "election of all local government
officials." This would have insured that the elections for the regular Parliament would be held
in the next local elections following the ratification of the proposed changes. However, the
absence of the word "next" allows the interim Parliament to schedule the elections for the
regular Parliament simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of
office. This allows incumbent members of the House of Representatives to hold office
beyond their current three-year term of office, and possibly even beyond the five-year term
of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who signed the
signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and
even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains
the full text of the proposed amendments to avoid fraud or misrepresentation. In the present
initiative, the 6.3 million signatories had to rely on the verbal representations of Atty.
Lambino and his group because the signature sheets did not contain the full text of the
proposed changes. The result is a grand deception on the 6.3 million signatories who were
led to believe that the proposed changes would require the holding in 2007 of elections for
the regular Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed the
signature sheets. The proposed changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on
Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and
a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the
Court and the people should simply ignore it. Far from being a surplusage, this provision
invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the 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 typically use simplistic
advertising to present their initiative to potential petition-signers and eventual voters.
Many voters will never read the full text of the initiative before the election. More
importantly, there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the legislative
process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or
revisions to be undertaken by the interim Parliament as a constituent assembly. The people
who signed the signature sheets could not have known that their signatures would be used
to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim
Parliament to amend or revise again the Constitution within 45 days from ratification of the
proposed changes, or before the May 2007 elections. In the absence of the proposed
Section 4(4), the interim Parliament has the discretion whether to amend or revise again the
Constitution. With the proposed Section 4(4), the initiative proponents want the interim
Parliament mandated to immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising
again so soon the Constitution. The signature sheets do not also explain what specific
amendments or revisions the initiative proponents want the interim Parliament to make, and
why there is a need for such further amendments or revisions. The people are again left in
the dark to fathom the nature and effect of the proposed changes. Certainly, such an
initiative is not "directly proposed by the people" because the people do not even know the
nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30
August 2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if
the interim Parliament does not schedule elections for the regular Parliament by 30 June
2010. However, there is no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007, three years earlier
than that of half of the present Senators. Thus, all the present members of the House will
remain members of the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister
exercises all the powers of the President. If the interim Parliament does not schedule
elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from
the present members of the House of Representatives to the exclusion of the present
Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million
people who signed the signature sheets could not have known that their signatures would
be used to discriminate against the Senators. They could not have known that their
signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of
Prime Minister only to members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the
full text of the proposed amendments is most likely a deception, and can operate as
a gigantic fraud on the people. That is why the Constitution requires that an initiative must
be "directly proposed by the people x x x in a petition" - meaning that the people must sign
on a petition that contains the full text of the proposed amendments. On so vital an issue as
amending the nation's fundamental law, the writing of the text of the proposed amendments
cannot be hidden from the people under a general or special power of attorney to unnamed,
faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court
do not personally know the people who sign the petition. However, this trust emanates
from a fundamental assumption: the full text of the proposed amendment is first shown to
the people before they sign the petition, not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails
to comply with the requirement of Section 2, Article XVII of the Constitution that the
initiative must be "directly proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the
Constitution and not to its revision. In contrast, Congress or a constitutional convention can
propose both amendments and revisions to the Constitution. Article XVII of the Constitution
provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
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 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.
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 framers intended, and wrote, that a people's initiative may
propose only amendments to the Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to propose revisions to the
Constitution, the people cannot propose revisions even as they are empowered to propose
amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x
x x applies only to the proposing and the adopting or rejecting of 'laws and
amendments to the Constitution' and does not purport to extend to a
constitutional revision. x x x x It is thus clear that a revision of the Constitution may
be accomplished only through ratification by the people of a revised constitution
proposed by a convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention, and the writ sought by petitioner
should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may
be amended or revised, it can be altered by those who favor amendments,
revision, or other change only through the use of one of the specified means. The
constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question
that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the
revision of the constitution drafted by the 'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of
adoption, x x x.
While differing from that document in material respects, the measure sponsored
by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution
x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be
submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x
xxx
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only
propose amendments to the Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures,
cannot justify a deviation from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended
in the manner prescribed by the instrument itself, and that any attempt to revise
a constitution in a manner other than the one provided in the instrument is
almost invariably treated as extra-constitutional and revolutionary. x x x x "While
it is universally conceded that the people are sovereign and that they have power
to adopt a constitution and to change their own work at will, they must, in doing
so, act in an orderly manner and according to the settled principles of
constitutional law. And where the people, in adopting a constitution, have
prescribed the method by which the people may alter or amend it, an attempt to
change the fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk
from its solemn oath and duty to insure compliance with the clear command of the
Constitution that a people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision of
the Constitution? If the Lambino Group's initiative constitutes a revision, then the present
petition should be dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.
Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding
nature, and the provisions contained therein for its revision indicate the will of
the people that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like permanent and abiding
nature. On the other hand, the significance of the term "amendment" implies such
an addition or change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was framed.35 (Emphasis
supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like
altering the principle of separation of powers or the system of checks-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 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.40Qualitatively, the proposed changes alter
substantially the basic plan of government, from presidential to parliamentary, and from a
bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three
great co-equal branches of government in the present Constitution are reduced into
two. This alters the separation of powers in the Constitution. A shift from the present
Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical change in the
structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the
abolition alone of one chamber of Congress alters the system of checks-and-balances within
the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and
the abolition of one chamber of Congress, is beyond doubt a revision, not a mere
amendment. On the face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of government as set forth in
the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional
Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new
provisions deemed necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document, or
of provisions of the document which have over-all implications for the entire document, to
determine how and to what extent they should be altered. Thus, for instance a switch from
the presidential system to a parliamentary system would be a revision because of its over-
all impact on the entire constitutional structure. So would a switch from a bicameral
system to a unicameral system be because of its effect on other important provisions of
the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State
constitution to shift from a bicameral to a unicameral legislature. The issue turned on
whether the initiative "was defective and unauthorized where [the] proposed amendment
would x x x affect several other provisions of [the] Constitution." The Supreme Court of
Florida, striking down the initiative as outside the scope of the initiative clause, ruled as
follows:
 The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions of the
Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all
of the states of the nation, except one, since the earliest days. It would be difficult
to visualize a more revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on
government.
We conclude with the observation that if such proposed amendment were adopted
by the people at the General Election and if the Legislature at its next session
should fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of
appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from
an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and
many sessions of the Legislature in bringing about the Constitution of 1968 was to
eliminate inconsistencies and conflicts and to give the State a workable, accordant,
homogenous and up-to-date document. All of this could disappear very quickly if
we were to hold that it could be amended in the manner proposed in the initiative
petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The
Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature,
it also seeks to merge the executive and legislative departments. The initiative in Adams did
not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution
that would be affected by the shift from a bicameral to a unicameral legislature. In the
Lambino Group's present initiative, no less than 105 provisions of the Constitution would be
affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that
the Lambino Group's present initiative seeks far more radical changes in the structure of
government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is
only one of procedure, not of substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution, substantive changes are called
"revisions" because members of the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through an initiative, are called
"amendments" because the changes are made by ordinary people who do not make an
"occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both "amendment" and "revision" when it speaks of
legislators and constitutional delegates, while the same provisions expressly
provide only for "amendment" when it speaks of the people. It would seem that
the apparent distinction is based on the actual experience of the people, that on
one hand the common people in general are not expected to work full-time on the
matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional
convention delegates are expected to work full-time on the same matter because
that is their occupation, profession or vocation. Thus, the difference between the
words "revision" and "amendment" pertain only to the process or procedure of
coming up with the corrections, for purposes of interpreting the constitutional
provisions.
100. Stated otherwise, the difference between "amendment" and "revision"
cannot reasonably be in the substance or extent of the correction. x x x x
(Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had
drafted the same proposed changes that the Lambino Group wrote in the present initiative,
the changes would constitute a revision of the Constitution. Thus, the Lambino Group
concedes that the proposed changes in the present initiative constitute a revision if
Congress or a constitutional convention had drafted the changes. However, since the
Lambino Group as private individuals drafted the proposed changes, the changes are merely
amendments to the Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the
Constitution are clear and plainly stated, courts do not deviate from such categorical intent
and language.45 Any theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by creating
inconsistencies in the form of government established in the Constitution. Such a theory,
devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only
exposes the flimsiness of the Lambino Group's position. Any theory advocating that a
proposed change involving a radical structural change in government does not constitute a
revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the
Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative. His theory is that Article XVII, section 2 merely
 provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to
the constitution that cannot be enacted through the initiative process. They assert
that the distinction between amendment and revision is determined by reviewing
the scope and subject matter of the proposed enactment, and that revisions are
not limited to "a formal overhauling of the constitution." They argue that this ballot
measure proposes far reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and radical restructuring
of the government's relationship with a defined group of citizens. Plaintiffs assert
that, because the proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior approval of the
legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit
revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court
concluded that a revision of the constitution may not be accomplished by initiative,
because of the provisions of Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the
initiative as a means of amending the Oregon Constitution, but it contains no
similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only
section of the constitution which provides the means for constitutional revision
and it excludes the idea that an individual, through the initiative, may place such a
measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not
apply to constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express
intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the spectrum,
colors fuse and difficulties arise in determining whether there is an amendment or revision.
The present initiative is indisputably located at the far end of the red spectrum where
revision begins. The present initiative seeks a radical overhaul of the existing separation of
powers among the three co-equal departments of government, requiring far-reaching
amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without
affecting any other section or article, the change may generally be considered an
amendment and not a revision. For example, a change reducing the voting age from 18 years
to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an amendment and
not a revision.48 Also, a change requiring a college degree as an additional qualification for
election to the Presidency is an amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also
affect the structure of government or the system of checks-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-by-case, depending on how it affects
other provisions, as well as how it affects the structure of government, the carefully crafted
system of checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to undertake a
revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed
and identifiable deliberative bodies or recorded proceedings, to undertake only amendments
and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions
states:
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the
1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they
shall be amended to conform with a unicameral parliamentary form of
government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with
a prior law, the later law prevails. This rule also applies to construction of constitutions.
However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its
head this rule of construction by stating that in case of such irreconcilable inconsistency, the
earlier provision "shall be amended to conform with a unicameral parliamentary form of
government." The effect is to freeze the two irreconcilable provisions until the earlier one
"shall be amended," which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a
"surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so
that the later provision automatically prevails in case of irreconcilable inconsistency.
However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory
Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in
the proposed changes. The inconsistency is between a provision in Article VI of the 1987
Constitution and the "Parliamentary system of government," and the inconsistency shall be
resolved in favor of a "unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's
proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models,
which are among the few countries with unicameral parliaments? The proposed changes
could not possibly refer to the traditional and well-known parliamentary forms of
government the British, French, Spanish, German, Italian, Canadian, Australian, or
Malaysian models, which have all bicameral parliaments. Did the people who signed the
signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the
Constitution but only for amendments. A shift from the present 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 Constitution. An affirmation or reversal of Santiago will not
change the outcome of the present petition. Thus, this Court must decline to
revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements
of the Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case
before the Court can be resolved on some other grounds. Such avoidance is a logical
consequence of the well-settled doctrine that courts will not pass upon the constitutionality
of a statute if the case can be resolved on some other grounds. 51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision
on initiatives to amend the Constitution, this will not change the result here because the
present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the
present initiative must first comply with Section 2, Article XVII of the Constitution even
before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the
"petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA
6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended
petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes
B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels
for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino
Group, claiming to act "together with" the 6.3 million signatories, merely attached the
signature sheets to the petition and amended petition. Thus, the petition and amended
petition filed with the COMELEC did not even comply with the basic requirement of RA 6735
that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No
petition embracing more than one (1) subject shall be submitted to the electorate; x x x."
The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to
propose further amendments or revisions to the Constitution, is a subject matter totally
unrelated to the shift in the form of government. Since the present initiative embraces more
than one subject matter, RA 6735 prohibits submission of the initiative petition to the
electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed
this Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action
(PIRMA) v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is
attributable to the COMELEC. On this ground alone, the present petition warrants outright
dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:
 The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could
be attributed to the public respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and
obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly
amending or revising it in blatant violation of the clearly specified modes of amendment and
revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered
waters, to be tossed and turned by every dominant political group of the day. If this Court
allows today a cavalier change in the Constitution outside the constitutionally prescribed
modes, tomorrow the new dominant political group that comes will demand its own set of
changes in the same cavalier and unconstitutional fashion. A revolving-door constitution
does not augur well for the rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes
cast53 approved our Constitution in a national plebiscite held on 11 February 1987. That
approval is the unmistakable voice of the people, the full expression of the people's
sovereign will. That approval included the prescribed modes for amending or revising the
Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino
Group, can change our Constitution contrary to the specific modes that the people, in their
sovereign capacity, prescribed when they ratified the Constitution. The alternative is an
extra-constitutional change, which means subverting the people's sovereign will and
discarding the Constitution. This is one act the Court cannot and should never do. As the
ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to
defend and protect the Constitution, which embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot
override the specific modes of changing the Constitution as prescribed in the Constitution
itself. Otherwise, the Constitution the people's fundamental covenant that provides
enduring stability to our society becomes easily susceptible to manipulative changes by
political groups gathering signatures through false promises. Then, the Constitution ceases to
be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino
Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of
the incumbent President to change the Constitution. This forewarns the Court to be wary of
incantations of "people's voice" or "sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The
Constitution, which embodies the people's sovereign will, is the bible of this Court. This
Court exists to defend and protect the Constitution. To allow this constitutionally infirm
initiative, propelled by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
FACTS:
On 25 August 2006, Lambino et al filed a petition with the COMELEC to hold a plebiscite that
will ratify their initiative petition to change the 1987 Constitution under Section 5(b) and (c)2
and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act.
The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each legislative
district represented by at least three per centum (3%) of its registered voters. The Lambino
Group also claimed that COMELEC election registrars had verified the signatures of the 6.3
million individuals.
The Lambino Groups initiative petition changes the 1987 Constitution by modifying Sections
1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive
Department) and by adding Article XVIII entitled Transitory Provisions. These proposed
changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government.
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.
The COMELEC denied the petition citing Santiago v. COMELEC declaring RA 6735 inadequate
to implement the initiative clause on proposals to amend the Constitution.
ISSUES:
1. Whether the Lambino Groups initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a peoples 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
HELD:
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 peoples 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 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. to the Constitution. While this provision does not expressly state that the petition must set
The framers plainly stated that before they sign there is already a draft shown to them. The
framers also envisioned that the people should sign on the proposal itself because the
proponents must prepare that proposal and pass it around for signature.
The essence of amendments directly proposed by the people through initiative upon a
petition is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second, as an initiative upon
a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is directly proposed by the people through initiative upon a
petition only if the people sign on a petition that contains the full text of the proposed
amendments.
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 sheet after the oral arguments of 26 September 2006 when they
filed their Memorandum on 11 October 2006.
2. 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 peoples initiative to
amend the Constitution. There is no need to revisit this Courts ruling in Santiago declaring
RA 6735 incomplete, inadequate or wanting in essential terms and conditions to cover the
system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not
change the outcome of the present petition. Thus, this Court must decline to revisit Santiago
which effectively ruled that RA 6735 does not comply with the requirements of the
Constitution to implement the initiative clause on amendments to the Constitution.
ISSUES:
Whether or not the proposed changes constitute an amendment or revision
Whether or not the initiative petition is sufficient compliance with the constitutional
requirement on direct proposal by the people
RULING:
Initiative petition does not comply with Sec. 2, Art. XVII on direct proposal by people Sec. 2,
Art. XVII...is the governing provision that allows a peoples initiative to propose amendments
forth the full text of the proposed amendments, the deliberations of the framers of our
Constitution clearly show that: (a) the framers intended to adopt relevant American
jurisprudence on peoples initiative; and (b) in particular, the people must first seethe full
text of the proposed amendments before they sign, and that the people must sign on a
petition containing such full text. 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.2 elements of
initiative1.First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf.
2. Second, as an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. 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 stated the fact of such
attachment. This is an assurance that everyone of the several millions of signatories to the
petition had seen the full text of the proposed amendments before not after signing.
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. In the case of the Lambino Groups petition, theres not a single
word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither
does the signature sheet state that the text of the proposed changes is attached to it. The
signature sheet merely asks a question whether the people approve a shift from the
Bicameral-Presidential to the Unicameral- Parliamentary system of government. The
signature sheet does not show to the people the draft of the proposed changes before they
are asked to sign the signature sheet. This omission is fatal. An initiative that gathers
signatures from the people without first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a gigantic fraud on the people.
Thats 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 nations 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 initiative violates Section 2,
Article XVII of the Constitution disallowing revision through initiatives 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 peoples initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to any amendment
to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the
third mode, applies only to amendments to this Constitution. This distinction was
intentional as shown by the deliberations of the Constitutional Commission. A peoples
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.
Does the Lambino Groups initiative constitute a revision of the Constitution? Yes. By any
legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office of the President and the abolition
of one chamber of Congress, is beyond doubt a revision, not a mere amendment.
Amendment vs. Revision Courts have long recognized the distinction between an
amendment and a revision of a constitution. 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.
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 18years
to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100% to 60% is an amendment and not a revision.
Also, a change requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.
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. However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one sentence of the Constitution may
be a revision and not an amendment. For example, the substitution of the word republican
with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls
the entire structure of government and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be examined case-by-case, depending
on how it affects other provisions, as well as how it affects the structure of government, the
carefully crafted system of checks-and-balances, and the underlying ideological basis of the
existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to undertake a
revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow peoples initiatives, which do not have fixed
and identifiable deliberative bodies or recorded proceedings, to undertake only amendments
and not revisions. Tests to determine whether amendment or revision 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. 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. 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.
A change in the nature of the basic governmental plan also includes changes that jeopardize
the traditional form of government and the system of check and balances.
Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision
and not merely an amendment. Quantitatively, the Lambino Groups 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. 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 A change in the structure of
government is a revision of the Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two. This alters the separation of
powers in the Constitution. A shift from the present Bicameral-Presidential system to a
Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative
and executive branches is a radical change in the structure of government. The abolition
alone of the Office of the President as the locus of Executive Power alters the separation of
powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of
one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution. 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. 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. The SC, however, ruled that the
express intent of the framers and the plain language of the Constitution contradict the
Lambino Groups theory. Where the intent of the framers and the language of the
Constitution are clear and plainly stated, courts do not deviate from such categorical intent
and language.
 EN BANC
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION
T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the
issue of whether the said petitioners have a cause of action to "prevent the misappropriation
or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The
principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was
instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical forests." The same was filed
for themselves and others who are equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to bring them all before the Court."
The minors further asseverate that they "represent their generation as well as generations
yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons
acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific evidence reveals that in order to
maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance
of this balance as a consequence of deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water
table as a result of the intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive
erosion and the consequential loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and
other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent
spells of drought as is presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands
and agricultural plains arising from the absence of the absorbent mechanism of forests, (j)
the siltation and shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation and the generation
of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon
of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their intention
to present expert witnesses as well as documentary, photographic and film evidence in the
course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests
are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0
million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex
"A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines
will be bereft of forest resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of
this continued trend of deforestation to the plaintiff minor's generation and to generations
yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff
minors and their successors who may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of
the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State
(a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each
other;
(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources
(sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature."
(Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law
and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action
to arrest the unabated hemorrhage of the country's vital life support systems and continued
rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss. 7 In the said order, not only was the defendant's claim that the complaint states
no cause of action against him and that it raises a political question sustained, the
respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the
latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on
Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.)
No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of
the people to a balanced and healthful ecology, the concept of generational genocide in
Criminal Law and the concept of man's inalienable right to self-preservation and self-
perpetuation embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than
what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State when the public interest
so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to
them, do not reveal a valid cause of action. They then reiterate the theory that the question
of whether logging should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They therefore
assert that the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time usually for twenty-five (25) years. During its effectivity, the same
can neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint is of common and general
interest not just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of
them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as
future generations. 10 Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
After a careful and circumspect evaluation of the Complaint, the Court
cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking
to enforce and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes
that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a
cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may
not be taken cognizance of by this Court without doing violence to the
sacred principle of "Separation of Powers" of the three (3) co-equal
branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and conclusions based on unverified
data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the
same article:
Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary
sessions of the 1986 Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the
section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may
be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby
disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources, specifically
forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of Filipinos." Section
3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development
and the use of the country's natural resources, not only for the present generation
but for future generations as well. It is also the policy of the state to recognize and
apply a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources
shall be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and
P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing
policy of the State (a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the
social, economic and other requirements of present and future generations of Filipinos, and
(c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee
and guardian of the environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance
the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated their
right to a balanced and healthful ecology; hence, the full protection thereof requires that no
further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter
should be considered; furthermore, the truth of falsity of the said allegations is beside the
point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved
in such a case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost
care and circumspection in passing upon a motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of
their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is
concerned, there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to
the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the Constitution
clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment
of contracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms
and conditions regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President
may amend, modify, replace or rescind any contract, concession, permit,
licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action.
It is not a contract, property or a property right protested by the due process
clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the
utilization and disposition of forest resources to the end that public
welfare is promoted. A timber license is not a contract within the purview
of the due process clause; it is only a license or privilege, which can be
validly withdrawn whenever dictated by public interest or public welfare
as in this case.
A license is merely a permit or privilege to do what otherwise would be
unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting of license
does not create irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they
are not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health
and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited
by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to
work them harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
FACTS:
The plaintiffs in this case are all minors duly represented and joined by their parents. The first
complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the
Regional Trial Court, National capital Judicial Region against defendant (respondent)
Secretary of the Department of Environment and Natural Resources (DENR). Plaintiffs alleged
that they are entitled to the full benefit, use and enjoyment of the natural resource treasure
that is the country's virgin tropical forests. They further asseverate that they represent their
generation as well as generations yet unborn and asserted that continued deforestation have
caused a distortion and disturbance of the ecological balance and have resulted in a host of
environmental tragedies.
Plaintiffs prayed that judgment be rendered ordering the respondent, his agents,
representatives and other persons acting in his behalf to cancel all existing Timber License
Agreement (TLA) in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint
had no cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief
prayed for would result in the impairment of contracts which is prohibited by the
Constitution.
Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the
court to rescind and set aside the dismissal order on the ground that the respondent RTC
Judge gravely abused his discretion in dismissing the action.
ISSUES:
(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.
RULING:
First Issue: Cause of Action.
Respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. The Court did
not agree with this. The complaint focuses on one fundamental legal right -- the right to a
balanced and healthful ecology which is incorporated in Section 16 Article II of the
Constitution. The said right carries with it the duty to refrain from impairing the environment
and implies, among many other things, the judicious management and conservation of the
country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary
government agency responsible for the governing and supervising the exploration,
utilization, development and conservation of the country's natural resources. The policy
declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of the Administrative
Code of 1987. Both E.O. 192 and Administrative Code of 1987 have set the objectives which
will serve as the bases for policy formation, and have defined the powers and functions of
the DENR. Thus, right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as DENR's duty to protect and advance the said right.
A denial or violation of that right by the other who has the correlative duty or obligation to
respect or protect or respect the same gives rise to a cause of action. Petitioners maintain
that the granting of the TLA, which they claim was done with grave abuse of discretion,
violated their right to a balance and healthful ecology. Hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
After careful examination of the petitioners' complaint, the Court finds it to be adequate
enough to show, prima facie, the claimed violation of their rights.
Second Issue: Political Issue.
Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded
jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the
wisdom of the decision of the Executive and Legislature and to declare their acts as invalid
for lack or excess of jurisdiction because it is tainted with grave abuse of discretion.
Third Issue: Violation of the non-impairment clause.
The Court held that the Timber License Agreement is an instrument by which the state
regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. It is not a contract within the purview of the due process clause thus, the non-
impairment clause cannot be invoked. It can be validly withdraw whenever dictated by public
interest or public welfare as in this case. The granting of license does not create irrevocable
rights, neither is it property or property rights.
Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit
by the exercise by the police power of the State, in the interest of public health, safety, moral
and general welfare. In short, the non-impairment clause must yield to the police power of
the State.
The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is
SET ASIDE.
FACTS:
A taxpayers class suit was filed by minors Juan Antonio Oposa, et al., representing their
generation and generations yet unborn, and represented by their parents against Fulgencio
Factoran Jr., Secretary of DENR. They prayed that judgment be rendered ordering the
defendant, his agents, representatives and other persons acting in his behalf to:
disposition, utilization, management, renewal and conservation of the countrys forest,
mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the
end that their exploration, development, and utilization be equitably accessible to the
present as well as the future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm
and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors assertion of their right to a sound environment constitutes at the
same time, the performance of their obligation to ensure the protection of that right for the
generations to come.

1. Cancel all existing Timber Licensing Agreements (TLA) in the country;

2. Cease and desist from receiving, accepting, processing, renewing, or appraising new
TLAs;

and granting the plaintiffs such other reliefs just and equitable under the premises. They
alleged that they have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as parens patriae. Furthermore,
they claim that the act of the defendant in allowing TLA holders to cut and deforest the
remaining forests constitutes a misappropriation and/or impairment of the natural resources
property he holds in trust for the benefit of the plaintiff minors and succeeding generations.

The defendant filed a motion to dismiss the complaint on the following grounds:

1. Plaintiffs have no cause of action against him;

2. The issues raised by the plaintiffs is a political question which properly pertains to
the legislative or executive branches of the government.

ISSUE:

Do the petitioner-minors have a cause of action in filing a class suit to prevent the
misappropriation or impairment of Philippine rainforests?

HELD:

Yes. Petitioner-minors assert that they represent their generation as well as generations to
come. The Supreme Court ruled that they can, for themselves, for others of their generation,
and for the succeeding generation, file a class suit. Their personality to sue in behalf of
succeeding generations is based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned. Such a right considers the
rhythm and harmony of nature which indispensably include, inter alia, the judicious
 EN BANC
[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF
THE GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the
shares of the Manila Hotel Corporation (MHC) which owns the historic Manila
Hotel. Opposing, respondents maintain that the provision is not self-executing but requires
an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares
form part of the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation No.
50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued
and outstanding shares of respondent MHC. The winning bidder, or the eventual strategic
partner, is to provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila
Hotel.[2] In a close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51%
of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00
per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of
Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset
to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC
(Office of the Government Corporate Counsel) are obtained.[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and
the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.[4] In
a subsequent letter dated 10 October 1995 petitioner sent a managers check issued by
Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to
accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on
prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining
order enjoining respondents from perfecting and consummating the sale to the Malaysian
firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former
Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the vibrancy of Philippine heritage
and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the
nobility and sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become a part of the
national patrimony.[6]Petitioner also argues that since 51% of the shares of the MHC carries
with it the ownership of the business of the hotel which is owned by respondent GSIS, a
government-owned and controlled corporation, the hotel business of respondent GSIS being
a part of the tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly covered by the term
national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy petitioner
should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding
rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the highest bid in terms of price per
share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) x x x x Thus, for the said provision to
operate, there must be existing laws to lay down conditions under which business may be
done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under
the term national patrimony which only refers to lands of the public domain, waters,
minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the guests who have slept
in the hotel and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimony of the nation. What is more, the
mandate of the Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only 51% of the
outstanding shares of the corporation, not the hotel building nor the land upon which the
building stands. Certainly, 51% of the equity of the MHC cannot be considered part of
the national patrimony.Moreover, if the disposition of the shares of the MHC is really
contrary to the Constitution, petitioner should have questioned it right from the beginning
and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided
that these Qualified Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet
arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is premature since
Renong Berhad could still very well be awarded the block of shares and the condition giving
rise to the exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if
ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for
mandamus should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of them by
petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute and unalterable except by
the authority from which it emanates. It has been defined as the fundamental and
paramount law of the nation.[10] It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all public authority
administered.[11] Under the doctrine of constitutional supremacy, if a law or contract violates
any norm of the constitution that law or contract whether promulgated by the legislative or
by the executive branch or entered into by private persons for private purposes is null and
void and without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute and
contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the framers
who merely establish an outline of government providing for the different departments of
the governmental machinery and securing certain fundamental and inalienable rights of
citizens.[12] A provision which lays down a general principle, such as those found in Art. II of
the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself
and becomes operative without the aid of supplementary or enabling legislation, or that
which supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing.Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws intended
to operate directly upon the people in a manner similar to that of statutory enactments, and
the function of constitutional conventions has evolved into one more like that of a legislative
body.Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are
self-executing.If the constitutional provisions are treated as requiring legislation instead of
self-executing, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law.[14] This can be cataclysmic. That is why the prevailing view
is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing rather than non-
self-executing x x x x Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make them
entirely meaningless by simply refusing to pass the needed implementing statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly
not self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of
the Committee on Style. If the wording of PREFERENCE is given to
QUALIFIED FILIPINOS, can it be understood as a preference to qualified
 Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove
the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against
whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay
down conditions under which business may be done. For example,
qualifications on capital, qualifications on the setting up of other financial
structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But, certainly,
the legislature is not precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the Constitution. Minor details
may be left to the legislature without impairing the self-executing nature of constitutional
provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its enforcement, provide a convenient
remedy for the protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more
available.[17] Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of
Art. XII is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing.[18] The argument is flawed. If the first and third
paragraphs are not self-executing because Congress is still to enact measures to encourage
the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph,
and the State still needs legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the
same logic, the second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in the grant of rights,
privileges and concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and only
placed in the Constitution as moral incentives to legislation, not as judicially enforceable
rights - are simply not in point. Basco v. Philippine Amusements and Gaming
Corporation[20] speaks of constitutional provisions on personal dignity,[21] the sanctity of
family life,[22] the vital role of the youth in nation-building,[23] the promotion of social
justice,[24] and the values of education.[25]Tolentino v. Secretary of Finance[26] refers to
constitutional provisions on social justice and human rights[27] and on
education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion of
general welfare,[30] the sanctity of family life,[31] the vital role of the youth in nation-
building[32] and the promotion of total human liberation and development.[33] A reading of
these provisions indeed clearly shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per se judicially
enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give preference to
qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional
right, such right enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -
The patrimony of the Nation that should be conserved and developed refers
not only to our rich natural resources but also to the cultural heritage of our
race. It also refers to our intelligence in arts, sciences and letters. Therefore, we
should develop not only our lands, forests, mines and other natural resources but
also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage.[35] When the Constitution speaks of national patrimony, it refers not only to the
natural resources of the Philippines, as the Constitution could have very well used the
term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While
it was restrictively an American hotel when it first opened in 1912, it immediately evolved to
be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of
various significant events which have shaped Philippine history. It was called the Cultural
Center of the 1930s. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays
host to dignitaries and official visitors who are accorded the traditional Philippine
hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart
and Memory of a City.[37] During World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When the American forces returned to
recapture Manila the hotel was selected by the Japanese together with Intramuros as the
two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the
center of political activities, playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous international recognitions, an
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d etat where an aspirant for vice-president was proclaimed President of the
Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs
and failures, loves and frustrations of the Filipinos; its existence is impressed with public
interest; its own historicity associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national economy and
patrimony. For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that anyone who
acquires or owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the
hotel edifice stands. Consequently, we cannot sustain respondents claim that the Filipino
First Policy provision is not applicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the Hotel building nor the land upon which the building
stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution
also includes corporations at least 60% of which is owned by Filipinos. This is very clear from
the proceedings of the 1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING
STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we
have to raise a question. Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled entities or
entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to
please restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified
and a Filipino enterprise is also qualified, will the Filipino enterprise still be
given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies
the so-called Filipino First policy.That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the
national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision was never
found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those citizens who
can make a viable contribution to the common good, because of credible competence and
efficiency. It certainly does NOT mandate the pampering and preferential treatment to
Filipino citizens or organizations that are incompetent or inefficient, since such an
indiscriminate preference would be counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a qualified foreigner and a qualified Filipino, the latter shall be chosen over the
former.
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference here is that
petitioner has been found to be possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another hotel company, or it has an overall
management and marketing proficiency to successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that
the subject provision is not self-executory and requires implementing legislation is quite
disturbing.The attempt to violate a clear constitutional provision - by the government itself -
is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can be the source
of a judicial remedy.We cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of
Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -
The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a constitutional command. That is
not how constitutional government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State,
not to respondent GSIS which by itself possesses a separate and distinct personality. This
argument again is at best specious. It is undisputed that the sale of 51% of the MHC could
only be carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact
alone makes the sale of the assets of respondents GSIS and MHC a state action. In
constitutional jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it engages in is
a public function; (2) when the government is so significantly involved with the private actor
as to make the government responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of respondent GSIS in selling 51%
of its share in respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by respondent GSIS,
is in fact a transaction of the State and therefore subject to the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to
the government as elements of the State. After all, government is composed of three (3)
divisions of power - legislative, executive and judicial. Accordingly, a constitutional mandate
directed to the State is correspondingly directed to the three (3) branches of government. It
is undeniable that in this case the subject constitutional injunction is addressed among
others to the Executive Department and respondent GSIS, a government instrumentality
deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet
the winning bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary contracts,
and secured the requisite approvals. Since the Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is
not an assurance that the highest bidder will be declared the winning bidder. Resultantly,
respondents are not bound to make the award yet, nor are they under obligation to enter
into one with the highest bidder. For in choosing the awardee respondents are mandated to
abide by the dictates of the 1987 Constitution the provisions of which are presumed to be
known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS,
lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle
in constitutional law that all laws and contracts must conform with the fundamental law of
the land.Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.[47] Certainly, the constitutional mandate itself
is reason enough not to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot
conceive of a strongerreason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will
have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid
of a foreign firm the award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is
omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of
the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always open
to public scrutiny. These are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the
sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner
could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were
invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or
if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the
case before us, while petitioner was already preferred at the inception of the bidding
because of the constitutional mandate, petitioner had not yet matched the bid offered by
Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS
to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the
apparent disregard by respondent GSIS of petitioners matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners
when there is a Filipino group willing to match the bid of the foreign group is to insist that
government be treated as any other ordinary market player, and bound by its mistakes or
gross errors of judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for
its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to
petitioner the block of shares of MHC and to execute the necessary agreements and
documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules after the latter has
matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention
of this Court to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business opportunities
but avowedly sanctions the preference for Filipinos whenever such preference is ordained by
the Constitution. The position of the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute its judgment
for that of the legislature or the executive about the wisdom and feasibility of legislation
economic in nature, the Supreme Court has not been spared criticism for decisions perceived
as obstacles to economic progress and development x x x x in connection with a temporary
injunction issued by the Courts First Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements were published in a major daily to the
effect that that injunction again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene
in contracts of the kind referred to or set itself up as the judge of whether they are viable or
attainable, it is its bounden duty to make sure that they do not violate the Constitution or the
laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or
excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair
and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary, objective should
not be pursued at the expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always defer to the
Constitution in the proper governance of a free society; after all, there is nothing
so sacrosanct in any economic policy as to draw itself beyond judicial review when the
Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the people
must be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign
investments, while laudible, is merely a policy. It cannot override the demands of
nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be
sold to the highest bidder solely for the sake of privatization. We are not talking about an
ordinary piece of property in a commercial district. We are talking about a historic relic that
has hosted many of the most important events in the short history of the Philippines as a
nation. We are talking about a hotel where heads of states would prefer to be housed as a
strong manifestation of their desire to cloak the dignity of the highest state function to their
official visits to the Philippines. Thus the Manila Hotel has played and continues to play a
significant role as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a
history of grandeur; a most historical setting that has played a part in the shaping of a
country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total
stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nations soul for some pieces of foreign silver. And so we ask: What advantage,
which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos if
Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride
will vanish if the nations cultural heritage is entrusted to a foreign entity? On the other hand,
how much dignity will be preserved and realized if the national patrimony is safekept in the
hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning
of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly watchman of the
nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the
Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary
agreements and documents to effect the sale, to issue the necessary clearances and to do
such other acts and deeds as may be necessary for the purpose.
SO ORDERED.
WHETHER OR NOT THE COSNTITUTIONAL PROVISIONS ARE SELF-EXECUTING
FACTS:
The Government Service Insurance System (GSIS), pursuant to the privatization program of
the Philippine Government under Proclamation 50 dated 8 December 1986, decided to sell
through public bidding 30% to 51% of the issued and outstanding shares of the Manila Hotel
(MHC). In a close bidding held on 18 September 1995 only two bidders participated: Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner. Pending the declaration of Renong Berhard as the
winning bidder/strategic partner and the execution of the necessary contracts, the Manila
Prince Hotel matched the bid price of P44.00 per share tendered by Renong Berhad in a
letter to GSIS dated 28 September 1995. Manila Prince Hotel sent a managers check to the
GSIS in a subsequent letter, but which GSIS refused to accept. On 17 October 1995, perhaps
apprehensive that GSIS has disregarded the tender of the matching bid and that the sale of
51% of the MHC may be hastened by GSIS and consummated with Renong Berhad, Manila
Prince Hotel came to the Court on prohibition and mandamus.
ISSUE: Whether or not the provisions of the Constitution, particularly Article XII Section 10,
are self-executing.
RULING:
A provision which lays down a general principle, such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution itself, so that they can
be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. In self-executing
constitutional provisions, the legislature may still enact legislation to facilitate the exercise of
powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation may supplement
and add to or prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not necessarily exhaust legislative power on
the subject, but any legislation must be in harmony with the constitution, further the
exercise of constitutional right and make it more available. Subsequent legislation however
does not necessarily mean that the subject constitutional provision is not, by itself, fully
enforceable. As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. In fine, Section 10, second paragraph,
Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for its enforcement.
From its very words the provision does not require any legislation to put it in operation.
Facts:
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government, decided to sell through
public bidding 30% to 51% of the issued and outstanding shares of respondent Manila Hotel
Corporation (MHC). The winning bidder, or the eventual strategic partner, will provide
management expertise or an international marketing/reservation system, and financial
support to strengthen the profitability and performance of the Manila Hotel.
In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner
Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the
MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with
ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per
share, or P2.42 more than the bid of petitioner. Prior to the declaration of Renong Berhard as
the winning bidder, petitioner Manila Prince Hotel matched the bid price and sent a
managers check as bid security, which GSIS refused to accept.
Apprehensive that GSIS has disregarded the tender of the matching bid and that the sale may
be consummated with Renong Berhad, petitioner filed a petition before the Court.
Issues:
Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a self-executing
provision.
Whether or not the Manila Hotel forms part of the national patrimony.
Whether or not the submission of matching bid is premature
Whether or not there was grave abuse of discretion on the part of the respondents in
refusing the matching bid of the petitioner.
Rulings:
In the resolution of the case, the Court held that:
It is a self-executing provision.
Since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract. A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing.
But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of
which the right it grants may be enjoyed or protected, is self-executing.
A constitutional provision is self-executing if the nature and extent of the right conferred and
the liability imposed are fixed by the constitution itself, so that they can be determined by an
examination and construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action. Unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the presumption now is that
all provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When our Constitution mandates that in the
grant of rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that qualified Filipinos shall
be preferred. And when our Constitution declares that a right exists in certain specified
circumstances an action may be maintained to enforce such right notwithstanding the
absence of any legislation on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces itself by its own inherent
potency and puissance, and from which all legislations must take their bearings. Where there
is a right there is a remedy. Ubi jus ibi remedium.
The Court agree.
In its plain and ordinary meaning, the term patrimony pertains to heritage. When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but
also to the cultural heritage of the Filipinos.
It also refers to Filipinos intelligence in arts, sciences and letters. In the present case, Manila
Hotel has become a landmark, a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, a concourse for the elite, it has
since then become the venue of various significant events which have shaped Philippine
history.
Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51%
of the equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or owns the 51%
will have actual control and management of the hotel. In this instance, 51% of the MHC
cannot be disassociated from the hotel and the land on which the hotel edifice stands.
It is not premature.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will
have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid
of a foreign firm the award should go to the Filipino. It must be so if the Court is to give life
and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this
may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat
is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting
of the basic law.
The Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always open
to public scrutiny. These are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.

There was grave abuse of discretion.

To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to
match the bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of judgement, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus, the Court would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary agreements and documents to effect
the sale in accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion.

Hence, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the
Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary
agreements and documents to effect the sale, to issue the necessary clearances and to do
such other acts and deeds as may be necessary for the purpose.
 EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS,
ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO,
SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO,
VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA CRUZ, RENE
DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE
FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS,
ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN
RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE
MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO
VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221(RA 9522) adjusting the countrys archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State.3 This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying,
among others, the sovereign right of States parties over their "territorial sea," the breadth of
which, however, was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act
No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms
of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental shelf.8 Complying with
these requirements, RA 9522 shortened one baseline, optimized the location of some
basepoints around the Philippine archipelago and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose
islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory,
and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of
the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in violation
of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands"
not only results in the loss of a large maritime area but also prejudices the livelihood of
subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners
facially attack RA 9522 for what it excluded and included its failure to reference either the
Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petitions compliance with the case or controversy requirement for judicial review grounded
on petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended
RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the countrys security, environment and economic interests or relinquish the
Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners
assertion that what Spain ceded to the United States under the Treaty of Paris were the
islands and all the waters found within the boundaries of the rectangular area drawn under
the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
 The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper
remedies to assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as
citizens and (2) the writs of certiorari and prohibition are proper remedies to test the
constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative15 nor misuse of
public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we
recognize petitioners locus standi as citizens with constitutionally sufficient interest in the
resolution of the merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing "a more direct and specific interest"
to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs
cannot issue absent any showing of grave abuse of discretion in the exercise of judicial,
quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the
part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court exercises
its constitutional power of judicial review, however, we have, by tradition, viewed the writs
of certiorari and prohibition as proper remedial vehicles to test the constitutionality of
statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional
import are sometimes crafted out of statutes which, while having no bearing on the personal
interests of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national
territory"21 because it discards the pre-UNCLOS III demarcation of Philippine territory under
the Treaty of Paris and related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying the Philippines
sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty
of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area
delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the
baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental
shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the conduct of
States in the worlds oceans and submarine areas, recognizing coastal and archipelagic
States graduated authority over a limited span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties
to mark-out specific basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours
could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn, this
gives notice to the rest of the international community of the scope of the maritime space
and submarine areas within which States parties exercise treaty-based rights, namely, the
exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs,
fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to
exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
(and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under
RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines
drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind
out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines
claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters"
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by
optimizing the location of basepoints, increased the Philippines total maritime space
(covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square
nautical miles, as shown in the table below:29

Even under petitioners theory that the Philippine territory embraces the islands and all the Extent of maritime area
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the using RA 3046, as Extent of maritime area
Philippines would still have to be drawn in accordance with RA 9522 because this is the only amended, taking into using RA 9522, taking into
way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn account the Treaty of account UNCLOS III (in
from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris delimitation (in square nautical miles)
Paris, but from the "outermost islands and drying reefs of the archipelago."24 square nautical miles)

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as Internal or
petitioners claim, diminution of territory. Under traditional international law typology, States archipelagic waters 166,858 171,435
acquire (or conversely, lose) territory through occupation, accretion, cession and
Territorial Sea 274,136 32,106
prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treatys terms to delimit maritime zones and Exclusive Economic
continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead Zone 382,669
governed by the rules on general international law.26
TOTAL 440,994 586,210
RA 9522s Use of the Framework
of Regime of Islands to Determine the Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA
Maritime Zones of the KIG and the 9522 even extends way beyond the waters covered by the rectangular demarcation under
Scarborough Shoal, not Inconsistent the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of
with the Philippines Claim of Sovereignty opposite or adjacent States, there will have to be a delineation of maritime boundaries in
Over these Areas accordance with UNCLOS III.30

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG,
"weakens our territorial claim" over that area.27 Petitioners add that the KIGs (and
Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss
of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA
3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with
a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that
RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline

Further, petitioners argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2
of the law commits to text the Philippines continued claim of sovereignty and jurisdiction
over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic
of the Philippines consistent with Article 121 of the United Nations Convention on the Law of
the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596
and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines would have
committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III
requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires
that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent
(3%) of the total number of baselines which can reach up to 125 nautical miles. 31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago,33 such that any straight
baseline loped around them from the nearest basepoint will inevitably "depart to an
appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took
pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and
the Scarborough Shoal are outside our archipelagic baseline because if we put them inside
our baselines we might be accused of violating the provision of international law which
states: "The drawing of such baseline shall not depart to any appreciable extent from the
general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang
mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang
maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila
magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs
limits.1avvphi1 The need to shorten this baseline, and in addition, to optimize the location of
basepoints using current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the
outer limits of its maritime zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length
allowed under Article 47(2) of the [UNCLOS III], which states that "The length of
such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of
the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped
or deleted from the baselines system. This will enclose an additional 2,195 nautical
miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later found to be
located either inland or on water, not on low-water line and drying reefs as
prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands
under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests
the Philippine States responsible observance of its pacta sunt servanda obligation under
UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded
by water, which is above water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own applicable maritime
zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did
not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these
waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose Philippine internal
waters to nuclear and maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as
"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and
of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as
archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well
as to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in
other respects affect the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its sovereignty over such waters
and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary, if
not marginal, burdens in the interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters,
subject to the treatys limitations and conditions for their exercise. 42 Significantly, the right of
innocent passage is a customary international law,43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely
forbid innocent passage that is exercised in accordance with customary international law
without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis--
vis continental coastal States which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters landward
of their baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of archipelagic
States archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate
islands generate their own maritime zones, placing the waters between islands separated by
more than 24 nautical miles beyond the States territorial sovereignty, subjecting these
waters to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present state of jurisprudence considers
the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do
not embody judicially enforceable constitutional rights x x x." 49 Article II provisions serve as
guides in formulating and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a
healthful and balanced ecology under Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive
economic zone, reserving solely to the Philippines the exploitation of all living and non-living
resources within such zone. Such a maritime delineation binds the international community
since the delineation is in strict observance of UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international community will of course reject it and will refuse to
be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high
seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found
within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional
freedom of navigation of other States that attached to this zone beyond the territorial sea
before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we
find petitioners reading plausible. Nevertheless, the prerogative of choosing this option
belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at
a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like
the Philippines will find itself devoid of internationally acceptable baselines from where the
breadth of its maritime zones and continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago; and second,
it weakens the countrys case in any international dispute over Philippine maritime space.
These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of
the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
Facts:
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as
an Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State
parties over their territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some
errors in R.A. 3046 reserving the drawing of baselines around Sabah.
In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984.
The requirements complied with are: to shorten one baseline, to optimize the location of
some basepoints and classify KIG and Scarborough Shoal as regime of islands.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the countrys waters to innocent and sea lanes passages hence undermining our
sovereignty and security; and
3. treating KIG and Scarborough as regime of islands would weaken our claim over those
territories.
Issue: Whether R.A. 9522 is constitutional?
Ruling:
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm
that regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out
basepoints along coasts, serving as geographic starting points to measure. it merely notices
the international community of the scope of our maritime space.
2. If passages is the issue, domestically, the legislature can enact legislation designating 2. WON RA 9522 is unconstitutional
routes within the archipelagic waters to regulate innocent and sea lanes passages. but in the
absence of such, international law norms operate. Ruling:

the fact that for archipelagic states, their waters are subject to both passages does not place Petition is dismissed.
them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary
international law, no modern state can invoke its sovereignty to forbid such passage. 1st Issue:
The SC ruled the suit is not a taxpayer or legislator, but as a citizen suit, since it is the citizens
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact,
who will be directly injured and benefitted in affording relief over the remedy sought.
it increased the Phils. total maritime space. Moreover, the itself commits the Phils.
continues claim of sovereignty and jurisdiction over KIG.
2nd Issue:
The SC upheld the constitutionality of RA 9522.
If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): drawing of basepoints shall not depart to any appreciable extent from the
general configuration of the archipelago.
Art 47 (2): the length of baselines shall not exceed 100 mm.
KIG and SS are far from our baselines, if we draw to include them, well breach the rules: that
it should follow the natural configuration of the archipelago.
Facts:
RA 3046 was passed in 1961 which provides among others the demarcation lines of the
baselines of the Philippines as an archipelago. This is in consonance with UNCLOS I.
First, RA 9522 did not delineate the territory the Philippines but is merely a statutory tool to
demarcate the countrys maritime zone and continental shelf under UNCLOS III. SC
emphasized that UNCLOS III is not a mode of acquiring or losing a territory as provided under
the laws of nations. UNCLOS III is a multi-lateral treaty that is a result of a long-time
negotiation to establish a uniform sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the
baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental
shelves. In order to measure said distances, it is a must for the state parties to have their
archipelagic doctrines measured in accordance to the treatythe role played by RA 9522.
The contention of the petitioner that RA 9522 resulted to the loss of 15,000 square nautical
miles is devoid of merit. The truth is, RA 9522, by optimizing the location of base points,
increased the Philippines total maritime space of 145,216 square nautical miles.

RA 5446 amended RA 3046 in terms of typographical errors and included Section 2 in which
Second, the classification of KGI and Scarborough Shoal as Regime of Islands is consistent
the government reserved the drawing of baselines in Sabah in North Borneo.
with the Philippines sovereignty. Had RA 9522 enclosed the islands as part of the
RA 9522 took effect on March 2009 amending RA 5446. The amendments, which are in
archipelago, the country will be violating UNCLOS III since it categorically stated that the
compliance with UNCLOS III in which the Philippines is one of the signatory, shortening one
length of the baseline shall not exceed 125 nautical miles. So what the legislators did is to
baseline while optimizing the other and classifying Kalayaan Group of Island and Scarborough
carefully analyze the situation: the country, for decades, had been claiming sovereignty over
Shoal as Regimes of Island.
KGI and Scarborough Shoal on one hand and on the other hand they had to consider that
these are located at non-appreciable distance from the nearest shoreline of the Philippine
Petitioners in their capacity as taxpayer, citizen and legislator assailed the constitutionality of
archipelago. So, the classification is in accordance with the Philippines sovereignty and
RA 9522:- it reduces the territory of the Philippines in violation to the Constitution and it
States responsible observance of its pacta sunt servanda obligation under UNCLOS III.
opens the country to maritime passage of vessels and aircrafts of other states to the
detriment of the economy, sovereignty, national security and of the Constitution as well.
Third, the new base line introduced by RA 9522 is without prejudice with delineation of the
They added that the classification of Regime of Islands would be prejudicial to the lives of the
baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over
fishermen.
which the Republic of the Philippines has acquired dominion and sovereignty.

Issues:
And lastly, the UNCLOS III and RA 9522 are not incompatible with the Constitutions
delineation of internal waters. Petitioners contend that RA 9522 transformed the internal
1. WON the petitioners have locus standi to bring the suit; and
waters of the Philippines to archipelagic waters hence subjecting these waters to the right of
innocent and sea lanes passages, exposing the Philippine internal waters to nuclear and
maritime pollution hazards. The Court emphasized that the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath, regardless whether internal or archipelagic waters. However,
sovereignty will not bar the Philippines to comply with its obligation in maintaining freedom
of navigation and the generally accepted principles of international law. It can be either
passed by legislator as a municipal law or in the absence thereof, it is deemed incorporated
in the Philippines law since the right of innocent passage is a customary international law,
thus automatically incorporated thereto.
This does not mean that the states are placed in a lesser footing; it just signifies concession of
archipelagic states in exchange for their right to claim all waters inside the baseline. In fact,
the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources
within such zone. Such a maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will refuse to be bound
by it.
The Court expressed that it is within the Congress who has the prerogative to determine the
passing of a law and not the Court. Moreover, such enactment was necessary in order to
comply with the UNCLOS III; otherwise, it shall backfire on the Philippines for its territory
shall be open to seafaring powers to freely enter and exploit the resources in the waters and
submarine areas around our archipelago and it will weaken the countrys case in any
international dispute over Philippine maritime space.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of
the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.
Facts:
In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms of the
United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified
on February 27, 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among
others, that the law decreased the national territory of the Philippines. Some of their
particular arguments are as follows:
RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
states sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the
terms of the Treaty of Paris and ancillary treaties.
RA 9522 opens the countrys waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security, contravening
the countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.
RA 9522s treatmentof the KIG as regime of islands not only results in the loss of a large
maritime area but also prejudices the livelihood of subsistence fishermen.
Hence, petitioners files action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic
baselines and classifying the baseline regime of nearby territories.
Issues: Whether or not RA 9522, the amendatory Philippine Baseline Law is unconstitutional.
Discussions:
The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine, which we
connect the outermost points of our archipelago with straight baselines and consider all the
waters enclosed thereby as internal waters. RA 9522, as a Statutory Tool to Demarcate the
Countrys Maritime Zones and Continental Shelf Under UNCLOS III, gave nothing less than an
explicit definition in congruent with the archipelagic doctrine.
Rulings:
No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the Countrys
Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine
Territory. It is a vital step in safeguarding the countrys maritime zones. It also allows an
internationally-recognized delimitation of the breadth of the Philippines maritime zones and
continental shelf.
Additionally, The Court finds that the conversion of internal waters into archipelagic waters
will not risk the Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic
State has sovereign power that extends to the waters enclosed by the archipelagic baselines,
regardless of their depth or distance from the coast. It is further stated that the regime of
archipelagic sea lanes passage will not affect the status of its archipelagic waters or the
exercise of sovereignty over waters and air space, bed and subsoil and the resources therein.
The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to
precisely describe the delimitations. It serves as a notice to the international family of states
and it is in no way affecting or producing any effect like enlargement or diminution of
territories.
 EN BANC
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower
court be ordered to continue the proceedings in civil case No. 3012 of said court, which were
initiated under the regime of the so-called Republic of the Philippines established during the
Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said
case on the ground that the proclamation issued on October 23, 1944, by General Douglas
MacArthur had the effect of invalidating and nullifying all judicial proceedings and
judgements of the court of the Philippines under the Philippine Executive Commission and
the Republic of the Philippines established during the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines in the absence
of an enabling law granting such authority. And the same respondent, in his answer and
memorandum filed in this Court, contends that the government established in the
Philippines during the Japanese occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the
next day their Commander in Chief proclaimed "the Military Administration under law over
the districts occupied by the Army." In said proclamation, it was also provided that "so far as
the Military Administration permits, all the laws now in force in the Commonwealth, as well
as executive and judicial institutions, shall continue to be effective for the time being as in
the past," and "all public officials shall remain in their present posts and carry on faithfully
their duties as before."
A civil government or central administration organization under the name of "Philippine
Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was
appointed Chairman thereof, was instructed to proceed to the immediate coordination of
the existing central administrative organs and judicial courts, based upon what had existed
therefore, with approval of the said Commander in Chief, who was to exercise jurisdiction
over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942,
respectively, in which the Supreme Court, Court of Appeals, Courts of First Instance, and the
justices of the peace and municipal courts under the Commonwealth were continued with
the same jurisdiction, in conformity with the instructions given to the said Chairman of the
Executive Commission by the Commander in Chief of Japanese Forces in the Philippines in
the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed by
the Philippine Executive Commission in exercising legislative, executive and judicial powers.
Section 1 of said Order provided that "activities of the administration organs and judicial
courts in the Philippines shall be based upon the existing statutes, orders, ordinances and
customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
substantial change was effected thereby in the organization and jurisdiction of the different
courts that functioned during the Philippine Executive Commission, and in the laws they
administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas
MacArthur issued a proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945,
General MacArthur, on behalf of the Government of the United States, solemnly declared
"the full powers and responsibilities under the Constitution restored to the Commonwealth
whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be
resolved in the present case may be reduced to the following:(1) Whether the judicial acts
and proceedings of the court existing in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and remained so even
after the liberation or reoccupation of the Philippines by the United States and Filipino
forces; (2)Whether the proclamation issued on October 23, 1944, by General Douglas
MacArthur, Commander in Chief of the United States Army, in which he declared "that all
laws, regulations and processes of any of the government in the Philippines than that of the
said Commonwealth are null and void and without legal effect in areas of the Philippines free
of enemy occupation and control," has invalidated all judgements and judicial acts and
proceedings of the said courts; and (3) If the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the Commonwealth, which
were the same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said courts at the
time the Philippines were reoccupied and liberated by the United States and Filipino forces,
and the Commonwealth of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules
of international law the judicial acts and proceedings of the courts established in the
Philippines under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained good and valid even after the liberation or reoccupation
of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the
legislative, executive, and judicial departments of a de facto government are good and valid.
The question to be determined is whether or not the governments established in these
Islands under the names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de facto governments. If
they were, the judicial acts and proceedings of those governments remain good and valid
even after the liberation or reoccupation of the Philippines by the American and Filipino
forces.
There are several kinds of de facto governments. The first, or government de facto in a
proper legal sense, is that government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal governments and maintains itself
against the will of the latter, such as the government of England under the Commonwealth,
first by Parliament and later by Cromwell as Protector. The second is that which is
established and maintained by military forces who invade and occupy a territory of the
enemy in the course of war, and which is denominated a government of paramount force, as
the cases of Castine, in Maine, which was reduced to British possession in the war of 1812,
and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United
States. And the third is that established as an independent government by the inhabitants of
a country who rise in insurrection against the parent state of such as the government of the
Southern Confederacy in revolt not concerned in the present case with the first kind, but only
with the second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United
States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description
of government, called also by publicists a government de facto, but which might, perhaps, be
more aptly denominated a government of paramount force. Its distinguishing characteristics
are (1), that its existence is maintained by active military power with the territories, and
against the rightful authority of an established and lawful government; and (2), that while it
exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become responsible, or wrongdoers, for those
acts, though not warranted by the laws of the rightful government. Actual governments of
this sort are established over districts differing greatly in extent and conditions. They are
usually administered directly by military authority, but they may be administered, also, civil
authority, supported more or less directly by military force. . . . One example of this sort of
government is found in the case of Castine, in Mine, reduced to British possession in the war
of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page
(9 Howard, 614). These were cases of temporary possessions of territory by lawfull and
regular governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III
of the Hague Conventions of 1907, which is a revision of the provisions of the Hague
Conventions of 1899 on the same subject of said Section III provides "the authority of the
legislative power having actually passed into the hands of the occupant, the latter shall take
steps in his power to reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the
right and is burdened with the duty to insure public order and safety during his military
occupation, he possesses all the powers of a de facto government, and he can suspended the
old laws and promulgate new ones and make such changes in the old as he may see fit, but
he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country, that is, those laws which
enforce public order and regulate social and commercial life of the country. On the other
hand, laws of a political nature or affecting political relations, such as, among others, the
right of assembly, the right to bear arms, the freedom of the press, and the right to travel
freely in the territory occupied, are considered as suspended or in abeyance during the
military occupation. Although the local and civil administration of justice is suspended as a
matter of course as soon as a country is militarily occupied, it is not usual for the invader to
take the whole administration into his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges and other judicial officers are kept
in their posts if they accept the authority of the belligerent occupant or are required to
continue in their positions under the supervision of the military or civil authorities appointed,
by the Commander in Chief of the occupant. These principles and practice have the sanction
of all publicists who have considered the subject, and have been asserted by the Supreme
Court and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on International
Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the
enemy while in its military possession, is one of the incidents of war, and flows directly from
the right to conquer. We, therefore, do not look to the Constitution or political institutions of
the conqueror, for authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the powers of such
government are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the of the world, and confirmed by the
writings of publicists and decisions of courts in fine, from the law of nations. . . . The
municipal laws of a conquered territory, or the laws which regulate private rights, continue in
force during military occupation, excepts so far as they are suspended or changed by the acts
of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at
his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory,
which were later embodied in the said Hague Conventions, President McKinley, in his
executive order to the Secretary of War of May 19,1898, relating to the occupation of the
Philippines by United States forces, said in part: "Though the powers of the military occupant
are absolute and supreme, and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as affect private rights of
person and property and provide for the punishment of crime, are considered as continuing
in force, so far as they are compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and in practice they are not usually abrogated,
but are allowed to remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United
States, continue to administer the ordinary law of the land as between man and man under
the supervision of the American Commander in Chief." (Richardson's Messages and Papers of
President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the
same case of Thorington vs. Smith, supra, recognized the government set up by the
Confederate States as a de facto government. In that case, it was held that "the central
government established for the insurgent States differed from the temporary governments
at Castine and Tampico in the circumstance that its authority did no originate in lawful acts of
regular war; but it was not, on the account, less actual or less supreme. And we think that it
must be classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of
private rights, which had existed in the States prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts of the States do not impair or tend to impair
the supremacy of the national authority, or the just rights of citizens under the Constitution,
they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17
Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war did not loosen
the bonds of society, or do away with civil government or the regular administration of the
laws. Order was to be preserved, police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates settled, and the transfer and
descent of property regulated, precisely as in the time of peace. No one, that we are aware
of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States
touching these and kindered subjects, where they were not hostile in their purpose or mode
of enforcement to the authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what
occured or was done in respect of such matters under the authority of the laws of these
local de facto governments should not be disregarded or held to be invalid merely because
those governments were organized in hostility to the Union established by the national
Constitution; this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary lines from the
necessity of civil obedience, nor destroy the bonds of society nor do away with civil
government or the regular administration of the laws, and because transactions in the
ordinary course of civil society as organized within the enemy's territory although they may
have indirectly or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except when proved to
have been entered into with actual intent to further invasion or insurrection:'" and "That
judicial and legislative acts in the respective states composing the so-called Confederate
States should be respected by the courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not impair the rights of
citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
forces, was a civil government established by the military forces of occupation and therefore
a de facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in Tampico, Mexico. As
Halleck says, "The government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character
is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the
rest of the world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p.
466.) The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals, is of no consequence. In
1806, when Napoleon occupied the greater part of Prussia, he retained the existing
administration under the general direction of a french official (Langfrey History of Napoleon,
1, IV, 25); and, in the same way, the Duke of Willington, on invading France, authorized the
local authorities to continue the exercise of their functions, apparently without appointing an
English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when
they invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in
every department of administration and of every rank. (Calvo, pars. 2186-93; Hall,
International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippine Executive Commission, and the
ultimate source of its authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion
of which has been already quoted, "under enemy duress, a so-called government styled as
the 'Republic of the Philippines' was established on October 14, 1943, based upon neither
the free expression of the people's will nor the sanction of the Government of the United
States." Japan had no legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino
people, before its military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations. For it is a well-established doctrine in International Law,
recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the
population of the occupied territory to swear allegiance to the hostile power), the belligerent
occupation, being essentially provisional, does not serve to transfer sovereignty over the
territory controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a
scheme contrived by Japan to delude the Filipino people into believing in the apparent
magnanimity of the Japanese gesture of transferring or turning over the rights of government
into the hands of Filipinos. It was established under the mistaken belief that by doing so,
Japan would secure the cooperation or at least the neutrality of the Filipino people in her
war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the
Filipino who, taking advantage of the withdrawal of the American forces from the Islands,
and the occupation thereof by the Japanese forces of invasion, had organized an
independent government under the name with the support and backing of Japan, such
government would have been considered as one established by the Filipinos in insurrection
or rebellion against the parent state or the Unite States. And as such, it would have been a de
facto government similar to that organized by the confederate states during the war of
secession and recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government established by the
Filipino insurgents in the Island of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case of
McCleod vs. United States (299 U. S., 416). According to the facts in the last-named case, the
Spanish forces evacuated the Island of Cebu on December 25, 1898, having first appointed a
provisional government, and shortly afterwards, the Filipinos, formerly in insurrection against
Spain, took possession of the Islands and established a republic, governing the Islands until
possession thereof was surrendered to the United States on February 22, 1898. And the said
Supreme Court held in that case that "such government was of the class of de
facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by
publicists a government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force . . '." That is to say, that the government of a country in
possession of belligerent forces in insurrection or rebellion against the parent state, rests
upon the same principles as that of a territory occupied by the hostile army of an enemy at
regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines
during the Japanese military occupation being de facto governments, it necessarily follows
that the judicial acts and proceedings of the courts of justice of those governments, which
are not of a political complexion, were good and valid, and, by virtue of the well-known
principle of postliminy (postliminium) in international law, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces under the
leadership of General Douglas MacArthur. According to that well-known principle in
international law, the fact that a territory which has been occupied by an enemy comes again
into the power of its legitimate government of sovereignty, "does not, except in a very few
cases, wipe out the effects of acts done by an invader, which for one reason or another it is
within his competence to do. Thus judicial acts done under his control, when they are not of
a political complexion, administrative acts so done, to the extent that they take effect during
the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an invasion; and as between the state and
the individuals the evil would be scarcely less, it would be hard for example that payment
of taxes made under duress should be ignored, and it would be contrary to the general
interest that the sentences passed upon criminals should be annulled by the disappearance
of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the
occupation and the abandonment have been each an incident of the same war as in the
present case, postliminy applies, even though the occupant has acted as conqueror and for
the time substituted his own sovereignty as the Japanese intended to do apparently in
granting independence to the Philippines and establishing the so-called Republic of the
Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a
political complexion, are and remain valid after reoccupation of a territory occupied by a
belligerent occupant, is confirmed by the Proclamation issued by General Douglas MacArthur
on October 23, 1944, which declares null and void all laws, regulations and processes of the
governments established in the Philippines during the Japanese occupation, for it would not
have been necessary for said proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of
October 23, 1944 that is, whether it was the intention of the Commander in Chief of the
American Forces to annul and void thereby all judgments and judicial proceedings of the
courts established in the Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to the
judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies established in
the Islands during the Japanese occupation. Taking into consideration the fact that, as above
indicated, according to the well-known principles of international law all judgements and
judicial proceedings, which are not of a political complexion, of the de facto governments
during the Japanese military occupation were good and valid before and remained so after
the occupied territory had come again into the power of the titular sovereign, it should be
presumed that it was not, and could not have been, the intention of General Douglas
MacArthur, in using the phrase "processes of any other government" in said proclamation, to
refer to judicial processes, in violation of said principles of international law. The only
reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to
violate the law of nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the
occupied territory, if and when the exigencies of the military occupation demand such action.
But even assuming that, under the law of nations, the legislative power of a commander in
chief of military forces who liberates or reoccupies his own territory which has been
occupied by an enemy, during the military and before the restoration of the civil regime, is as
broad as that of the commander in chief of the military forces of invasion and occupation
(although the exigencies of military reoccupation are evidently less than those of
occupation), it is to be presumed that General Douglas MacArthur, who was acting as an
agent or a representative of the Government and the President of the United States,
constitutional commander in chief of the United States Army, did not intend to act against
the principles of the law of nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the Presidents of the United States, and later
embodied in the Hague Conventions of 1907, as above indicated. It is not to be presumed
that General Douglas MacArthur, who enjoined in the same proclamation of October 23,
1944, "upon the loyal citizens of the Philippines full respect and obedience to the
Constitution of the Commonwealth of the Philippines," should not only reverse the
international policy and practice of his own government, but also disregard in the same
breath the provisions of section 3, Article II, of our Constitution, which provides that "The
Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would
result, and great public interests would be endangered and sacrificed, for disputes or suits
already adjudged would have to be again settled accrued or vested rights nullified, sentences
passed on criminals set aside, and criminals might easily become immune for evidence
against them may have already disappeared or be no longer available, especially now that
almost all court records in the Philippines have been destroyed by fire as a consequence of
the war. And it is another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests would be
endangered or sacrificed, or great mischief done, such construction is to be avoided, or the
court ought to presume that such construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives
who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts
or proceedings of the tribunals which the belligerent occupant had the right and duty to
establish in order to insure public order and safety during military occupation, would be
sufficient to paralyze the social life of the country or occupied territory, for it would have to
be expected that litigants would not willingly submit their litigation to courts whose
judgements or decisions may afterwards be annulled, and criminals would not be deterred
from committing crimes or offenses in the expectancy that they may escaped the penalty if
judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts
of justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37,
which has the force of law, issued by the President of the Philippines on March 10, 1945, by
virtue of the emergency legislative power vested in him by the Constitution and the laws of
the Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals,
and provided "that all case which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly
recognizes that the judgments and proceedings of the courts during the Japanese military
occupation have not been invalidated by the proclamation of General MacArthur of October
23, because the said Order does not say or refer to cases which have been duly appealed to
said court prior to the Japanese occupation, but to cases which had therefore, that is, up to
March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that
almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before
the restoration of the Commonwealth Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments
rendered by the Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say:
"Moreover when it is said that an occupier's acts are valid and under international law should
not be abrogated by the subsequent conqueror, it must be remembered that no crucial
instances exist to show that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand by the restored
government, but the matter can hardly be put further than this." (Wheaton, International
Law, War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge
"draws the conclusion that whether the acts of the occupant should be considered valid or
not, is a question that is up to the restored government to decide; that there is no rule of
international law that denies to the restored government to decide; that there is no rule of
international law that denies to the restored government the right of exercise its discretion
on the matter, imposing upon it in its stead the obligation of recognizing and enforcing the
acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of
the occupier, such as the laws, regulations and processes other than judicial of the
government established by the belligerent occupant. But in view of the fact that the
proclamation uses the words "processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings of the courts
during the Japanese occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid or nullify them. If
the proclamation had, expressly or by necessary implication, declared null and void the
judicial processes of any other government, it would be necessary for this court to decide in
the present case whether or not General Douglas MacArthur had authority to declare them
null and void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of Military
Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result
from the usages established between civilized nations, the laws of humanity and the
requirements of the public of conscience, constitute or from the law of nations. (Preamble of
the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section
III, of the Hague Regulations or Conventions which we have already quoted in discussing the
first question, imposes upon the occupant the obligation to establish courts; and Article 23
(h), section II, of the same Conventions, which prohibits the belligerent occupant "to declare .
. . suspended . . . in a Court of Law the rights and action of the nationals of the hostile party,"
forbids him to make any declaration preventing the inhabitants from using their courts to
assert or enforce their civil rights. (Decision of the Court of Appeals of England in the case of
Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the nationals
thereof from asserting or enforcing therein their civil rights, by necessary implication, the
military commander of the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their litigation during the
period of occupation. Otherwise, the purpose of these precepts of the Hague Conventions
would be thwarted, for to declare them null and void would be tantamount to suspending in
said courts the right and action of the nationals of the territory during the military
occupation thereof by the enemy. It goes without saying that a law that enjoins a person to
do something will not at the same time empower another to undo the same. Although the
question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a
domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230
U.S., 139), has declared that they "arise from general rules of international law and from
fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in
command of the forces of the United States in South Carolina after the end of the Civil War,
wholly annulling a decree rendered by a court of chancery in that state in a case within its
jurisdiction, was declared void, and not warranted by the acts approved respectively March
2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers
and duties of military officers in command of the several states then lately in rebellion. In the
course of its decision the court said; "We have looked carefully through the acts of March 2,
1867 and July 19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their jurisdiction; but
we have found nothing to warrant the order here in question. . . . The clearest language
would be necessary to satisfy us that Congress intended that the power given by these acts
should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end
that can be imagined. Whether Congress could have conferred the power to do such an act is
a question we are not called upon to consider. It is an unbending rule of law that the exercise
of military power, where the rights of the citizen are concerned, shall never be pushed
beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the
subject before us from the standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944,
which declared that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void without legal effect in
areas of the Philippines free of enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political complexion, of the courts of justice in
the Philippines that were continued by the Philippine Executive Commission and the Republic
of the Philippines during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the reoccupation of
liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are
the same as those existing prior to, and continued during, the Japanese military occupation
by the Philippine Executive Commission and by the so-called Republic of the Philippines, have
jurisdiction to continue now the proceedings in actions pending in said courts at the time the
Philippine Islands were reoccupied or liberated by the American and Filipino forces, and the
Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice into his own hands, but continues
the ordinary courts or tribunals to administer the laws of the country which he is enjoined,
unless absolutely prevented, to respect. As stated in the above-quoted Executive Order of
President McKinley to the Secretary of War on May 19, 1898, "in practice, they (the
municipal laws) are not usually abrogated but are allowed to remain in force and to be
administered by the ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present occasion." And
Taylor in this connection says: "From a theoretical point of view it may be said that the
conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of
government, legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels the
conqueror to continue local laws and institution so far as military necessity will permit."
(Taylor, International Public Law, p.596.) Undoubtedly, this practice has been adopted in
order that the ordinary pursuits and business of society may not be unnecessarily deranged,
inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the
Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military
administration under martial law over the territory occupied by the army, and ordered that
"all the laws now in force in the Commonwealth, as well as executive and judicial institutions,
shall continue to be affective for the time being as in the past," and "all public officials shall
remain in their present post and carry on faithfully their duties as before." When the
Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander
in Chief, on January 23, 1942, the Chairman of the Executive Commission, by Executive
Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme
Court, Court of Appeals, Court of First Instance, and justices of the peace of courts, with the
same jurisdiction in conformity with the instructions given by the Commander in Chief of the
Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when
the so-called Republic of the Philippines was inaugurated, the same courts were continued
with no substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine
Executive Commission, and the so-called Republic of the Philippines, it stands to reason that
the same courts, which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases
then pending in said courts, without necessity of enacting a law conferring jurisdiction upon
them to continue said proceedings. As Taylor graphically points out in speaking of said
principles "a state or other governmental entity, upon the removal of a foreign military force,
resumes its old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to regain
their original shape upon removal of the external force, and subject to the same exception
in case of absolute crushing of the whole fibre and content." (Taylor, International Public
Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his
conclusion that the Court of First Instance of Manila presided over by him "has no authority
to take cognizance of, and continue said proceedings (of this case) to final judgment until and
unless the Government of the Commonwealth of the Philippines . . . shall have provided for
the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines,
and the cases commenced and the left pending therein," is "that said courts were a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter.
27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine
Executive Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
institutions of the country occupied if continued by the conqueror or occupant, become the
laws and the courts, by adoption, of the sovereign nation that is militarily occupying the
territory. Because, as already shown, belligerent or military occupation is essentially
provisional and does not serve to transfer the sovereignty over the occupied territory to the
occupant. What the court said was that, if such laws and institutions are continued in use by
the occupant, they become his and derive their force from him, in the sense that he may
continue or set them aside. The laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws and the courts of the
Philippines, therefore, did not become, by being continued as required by the law of nations,
laws and courts of Japan. The provision of Article 45, section III, of the Hague Conventions of
1907 which prohibits any compulsion of the population of occupied territory to swear
allegiance to the hostile power, "extends to prohibit everything which would assert or imply
a change made by the invader in the legitimate sovereignty. This duty is neither to innovate
in the political life of the occupied districts, nor needlessly to break the continuity of their
legal life. Hence, so far as the courts of justice are allowed to continue administering the
territorial laws, they must be allowed to give their sentences in the name of the legitimate
sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however,
the victor need not allow the use of that of the legitimate government. When in 1870, the
Germans in France attempted to violate that rule by ordering, after the fall of the Emperor
Napoleon, the courts of Nancy to administer justice in the name of the "High German Powers
occupying Alsace and Lorraine," upon the ground that the exercise of their powers in the
name of French people and government was at least an implied recognition of the Republic,
the courts refused to obey and suspended their sitting. Germany originally ordered the use of
the name of "High German Powers occupying Alsace and Lorraine," but later offered to allow
use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once
established continues until changed by the some competent legislative power. It is not
change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III,
Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author
says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no
break or interregnum in law. From the time the law comes into existence with the first-felt
corporateness of a primitive people it must last until the final disappearance of human
society. Once created, it persists until a change take place, and when changed it continues in
such changed condition until the next change, and so forever. Conquest or colonization is
impotent to bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which
create and confer upon them their jurisdiction, it is evident that such laws, not being a
political nature, are not abrogated by a change of sovereignty, and continue in force "ex
proprio vigore" unless and until repealed by legislative acts. A proclamation that said laws
and courts are expressly continued is not necessary in order that they may continue in force.
Such proclamation, if made, is but a declaration of the intention of respecting and not
repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty
over these Islands, which she had afterwards transferred to the so-called Republic of the
Philippines, and that the laws and the courts of these Islands had become the courts of
Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue
exercising the same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are abolished or the laws creating and
conferring jurisdiction upon them are repealed by the said government. As a consequence,
enabling laws or acts providing that proceedings pending in one court be continued by or
transferred to another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are abolished or their
jurisdiction so change that they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings. When the Spanish sovereignty in
the Philippine Islands ceased and the Islands came into the possession of the United States,
the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded
to take cognizance of the actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme
Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of
First Instance of the Islands during the Spanish regime continued taking cognizance of cases
pending therein upon the change of sovereignty, until section 65 of the same Act No. 136
abolished them and created in its Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were enacted during the Japanese
occupation, but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of
occupation in the Philippines during the Spanish-American War of 1898, the same section 78
provided for the transfer of all civil actions then pending in the provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme
Court having jurisdiction over them according to law. And later on, when the criminal
jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186,
the same section provided that criminal cases pending therein within the jurisdiction of the
municipal court created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the Japanese
regime and, therefore, can continue the proceedings in cases pending therein prior to the
restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37
which we have already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby
abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the
said Order considers that the Court of Appeals abolished was the same that existed prior to,
and continued after, the restoration of the Commonwealth Government; for, as we have
stated in discussing the previous question, almost all, if not all, of the cases pending therein,
or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First Instance during the so-called Republic
of the Philippines. If the Court of Appeals abolished by the said Executive Order was not the
same one which had been functioning during the Republic, but that which had existed up to
the time of the Japanese occupation, it would have provided that all the cases which had,
prior to and up to that occupation on January 2, 1942, been dully appealed to the said Court
of Appeals shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final
judgment, the proceedings in cases, not of political complexion, pending therein at the time
of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila
has jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which
involves civil rights of the parties under the laws of the Commonwealth Government,
pending in said court at the time of the restoration of the said Government; and that the
respondent judge of the court, having refused to act and continue him does a duty resulting
from his office as presiding judge of that court, mandamus is the speedy and adequate
remedy in the ordinary course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular case, but many
other cases now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue,
directed to the respondent judge of the Court of First Instance of Manila, ordering him to
take cognizance of and continue to final judgment the proceedings in civil case No. 3012 of
said court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
FACTS:
The respondent judge refused to take cognizance of the case and to continue the
proceedings in petitioners case on the ground that the proclamation issued on October 23,
1944 by General Douglas MacArthur had invalidated and nullified all judicial proceedings and
judgments of court during the Japanese occupation. Respondent contends that the lower
courts have no jurisdiction to continue pending judicial proceedings and that the government
established during the Japanese occupation was no de facto government.
ISSUE:
1. Do the judicial acts and proceedings of the court during the Japanese occupation remain
good and valid?
2. Did the proclamation of MacArthur invalidated all judgments and judicial acts and
proceedings of said court?
3. May the present courts continue those proceedings pending in said courts?
HELD:
It is evident that the Philippine Executive Commission was a civil government established by
military forces and thus a de facto government of the second kind. Legislative, as well as
judicial, acts of de facto governments, which are not of political complexion, remain valid
after reoccupation. It is presumed that the proclamation of General MacArthur did not
specifically refer to judicial processes thus it has not invalidated all the judgments and
proceedings of the courts during the Japanese regime. The existence of the courts depend
upon the laws which create and confer upon them their jurisdiction. Such laws, not political
in nature, are not abrogated by a change of sovereignty and continue in force until repealed
by legislative acts. It is thus obvious that the present courts have jurisdiction to continue
proceedings in cases not of political complexion.
Facts:
Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the
Court of First Instance of Manila. After the Liberation of the Manila and the American
occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a
proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial
proceedings and judgments of the courts of the Philippines and, without an enabling law,
lower courts have no jurisdiction to take cognizance of and continue judicial proceedings
pending in the courts of the defunct Republic of the Philippines (the Philippine government
under the Japanese).
The court resolved three issues:
1. Whether or not judicial proceedings and decisions made during the Japanese occupation
were valid and remained valid even after the American occupation;
2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared
that all laws, regulations and processes of any other government in the Philippines than that
of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control invalidated all judgments and judicial acts
and proceedings of the courts;
3. And whether or not if they were not invalidated by MacArthurs proclamation, those
courts could continue hearing the cases pending before them.
Ratio:
Political and international law recognizes that all acts and proceedings of a de facto
government are good and valid. The Philippine Executive Commission and the Republic of the
Philippines under the Japanese occupation may be considered de facto governments,
supported by the military force and deriving their authority from the laws of war.
Municipal laws and private laws, however, usually remain in force unless suspended or
changed by the conqueror. Civil obedience is expected even during war, for the existence of
a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. And if they were not valid, then it
would not have been necessary for MacArthur to come out with a proclamation abrogating
them.
The second question, the court said, hinges on the interpretation of the phrase processes of
any other government and whether or not he intended it to annul all other judgments and
judicial proceedings of courts during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings of de
facto governments are valid and remain valid even after the occupied territory has been
liberated, then it could not have been MacArthurs intention to refer to judicial processes,
which would be in violation of international law.
A well-known rule of statutory construction is: A statute ought never to be construed to
violate the law of nations if any other possible construction remains.
Another is that where great inconvenience will result from a particular construction, or
great mischief done, such construction is to be avoided, or the court ought to presume that
such construction was not intended by the makers of the law, unless required by clear and
unequivocal words.
Annulling judgments of courts made during the Japanese occupation would clog the dockets
and violate international law, therefore what MacArthur said should not be construed to
mean that judicial proceedings are included in the phrase processes of any other
governments.
In the case of US vs Reiter, the court said that if such laws and institutions are continued in
use by the occupant, they become his and derive their force from him. The laws and courts of
the Philippines did not become, by being continued as required by the law of nations, laws
and courts of Japan.
It is a legal maxim that, excepting of a political nature, law once established continues until
changed by some competent legislative power.
IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new
sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and
the laws and courts of the Philippines had become courts of Japan, as the said courts and
laws creating and conferring jurisdiction upon them have continued in force until now, it
follows that the same courts may continue exercising the same jurisdiction over cases
pending therein before the restoration of the Commonwealth Government, until abolished
or the laws creating and conferring jurisdiction upon them are repealed by the said
government.
DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila,
ordering him to take cognizance of and continue to final judgment the proceedings in civil
case no. 3012.
Summary of ratio:
1. International law says the acts of a de facto government are valid and civil laws continue
even during occupation unless repealed.
2. MacArthur annulled proceedings of other governments, but this cannot be applied on
judicial proceedings because such a construction would violate the law of nations.
3. Since the laws remain valid, the court must continue hearing the case pending before it.
***3 kinds of de facto government: one established through rebellion (govt gets possession
and control through force or the voice of the majority and maintains itself against the will of
the rightful government)
through occupation (established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war; denoted as a government of paramount force)
through insurrection (established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state)
Facts:
Petitioner Co Kim Cham had as pending civil Case initiated during the time of the Japanese
occupation. After the liberation of Manila Judge Arsenio Dizon refused to continue hearings
on his case saying that the proclamation of Gen Douglas MacArthur has invalidated and
nullified all judicial proceedings and judgments of the courts of the Philippines and without
the enabling law, lower courts have no jurisdiction to take cognizance of proceedings
pending in the courts of the defunct Republic of the Philippines under the Japanese.
Issues:
1. Whether or Not judicial proceedings and decisions during the Japanese Occupation were
valid and remained valid.
2. Whether or not the proclamation of General MacArthur declared that all laws, regulations
and processes of any other Government other than that of the commonwealth are null and
void, invalidated and all judgments and judicial acts proceeding from the courts.
3. Whether or not of they were invalidated (reference to No.2), the courts can continue 2. Established through Occupation
hearing the cases pending before them
(PARAMOUNT FORCE)Maintained by the military forces who invade and occupy the
Held: territory of the enemy.

1. It is a legal truism in political and international law that all acts and proceedings and non- 3. Established through Insurrection
political judgments of a defacto government are good and valid. The governments by the
Philippine Executive Commission and the Republic of the Philippines during the Japanese Established as an independent government by the inhabitants of the country who rise in
military occupation being de facto governments, it necessarily follows that the judicial acts insurrection against the parent state.
and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or
reoccupation of the Philippines by the American and Filipino forces under the leadership of
General Douglas MacArthur.

2. It should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any other government" in said
proclamation, to refer to judicial processes, in violation of said principles of international law.
The only reasonable construction of the said phrase is that it refers to governmental
processes other than judicial processes of court proceedings. "a statute ought never to be
construed to violate the law of nations if any other possible construction remains."If a
belligerent occupant is required to establish courts of justice in the territory occupied, and
forbidden to prevent the nationals thereof from asserting or enforcing there in their civil
rights, by necessary implication, the military commander of the forces of liberation or the
restored government is restrained from nullifying or setting aside the judgments rendered by
said courts in their litigation during the period of occupation.

3. The proceedings in cases then pending in said court may continue, without necessity of
enacting a law conferring jurisdiction upon them to continue said proceedings. The laws and
courts of the Philippines did not become the laws and courts of Japan by being continued as
required by the law of nations. Same courts may continue exercising the same jurisdictions
and cases pending therein before the restoration of the commonwealth until abolished and
replaced by the said government.

DECISION:

WRIT OF MANDAMUS IS ISSUED to the judge of the Court Of First Instance of Manila ordering
him to take cognizance and continue to final judgment the proceedings in Case No. 3012.3
Kinds of De Facto Government:

1. Established through Rebellion

Governments gets possession and control through the force of the voice of the majority
and maintains itself rightful government